HomeMy WebLinkAbout20210125Application.pdfY ROCKY MOUNTAIN
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1407 W. North Temple, Suite 330
Salt Lake City, Utah 841l6
January 25,2021
YIA ELECTRONIC DELIWRY
Idaho Public Service Commission
I l33l W. Chinden Blvd
Building 8 Suite 20lA
Boise,Idaho 83714
Attention: Jan Noriyuki
Commission Secretary
RE CASE NO. PAC-8.2I42,
IN THE MATTER OF THE APPLICATION OF ROCKY MOUNTAIN POWER
FOR AN ORDER EXTENDING THE SHORT-TERM DEBT AUTHORITIES FIVE
YEARS
Please find for filing with the Idaho Public Utilities Commission Rocky Mountain Power's
Application in the above referenced matter. Pursuant to ldaho Code$ 6l-905 please note that the
Company's Application Fee in the amount of $1,000 is being submitted under separate cover.
Please contact Ted Weston directly at (801) 220-2963 if you have any further questions.
incerely
"^-D
Vice President, Regulation
Enclosures
Emily L. Wegner, (pro hac vice)
Rocky Mountain Power
1407 West North Temple, Rm 320
Salt Lake City UT 84116
Telephone : (80 l) 2204526
Email: Emily.Wegner@pacifi com.com
Attorney for Rocky Mountain Power
BEFORE TIIE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION )
oF ROCKY MOUNTATN POWER FOR AN )
ORDER EXTENDING THE SIIORT.TERM )
DEBT AUTHORITIES FIVE YEARS )
APPLICATION
CASE NO. PAC-EAI{2
Rocky Mountain Power, a division of PacifiCorp (the "Company"), Pursusnt to Idaho
Codes gg 6l-901 through 6l-904 andRules of Procedure 141 through 147 ofthe Idaho Public
Utility Commission (the "Commission"), hereby respectfully makes application to the
Commission for an order on or before April 16, 2021, extending the short-term debt authorities
granted in Case No. PAC-E-16-031 for an additional five years, or through April 30, 2026, on the
condition that the Company's senior secured debt be rated at "investment grade" by both
Standard & Poor's Rating Service and Moody's Investor Services, Inc. In support of this
Application, the Company represents as follows:
INTRODUCTION
l. Rocky Mountain Power is an electrical corporation and public utility in
the state of Idaho, subject to the jurisdiction of the Commission, with regard to its rates,
service, and accounting practices, $ 61-129. PacifiCorp also provides retail electricity
service in the states of California, Oregon, Utah, Washington, and Wyoming. Rocky
I In the Matter of the Application of Roclcy Mountain Power for an Order Extending the Short'Term Debt
Authorilies Five Years, OrderNo. 33476.
I
Mountain Power's business address is 1407 West North Temple, Salt Lake City, Utah
841 16.
COMMUNICATIONS
2. Notice of this Application will be published in the Post Register in Idaho
Falls which is in general circulation in the Company's service area in Idaho within seven
(7) days of the application.
3. Communications regarding this Application should be addressed to:
Ted Weston
Manager, Regulation
Rocky Mountain Power
1407 West North Temple, Rm 330
Salt Lake City, UT 84116
Telephone: (801) 220-2963
E-mail : Ted. Weston@Pacifi Corp.com
Emily Wegener
Senior Counsel
Rocky Mountain Power
1407 WestNorth Temple, Rm 320
Salt Lake City UT 841l6
Telephone: (801) 220-4526
E-mail : Emily. Weeener@Pacifi Com.com
In addition, Rocky Mountain Power respectfully requests that all data requests
regarding this matter be addressed to:
By e-mail (preferred):datarequest@pacifi corp.com
By regular mail:Data Request Response Center
PacifiCorp
825 NE Multnomah, Suite 2000
Portland, OR 97232
By fax:(s03) 813-6060
Informal inquiries may be directed to Ted Weston, State Manager (801) 220-29G3.
2
BACKGROUND
4. On February 24, 2006, PacifiCorp filed an Application2 requesting
authorization to borrow not more than $1.5 billion aggregate principal amount in short-
term debt through April 30, 2011. On March 14,2006, the Commission granted the
Company's Application in Order No. 29999.
5. On March g, 2011, the Company requested3 that the authorities granted
under Case No. PAC-E-06-01 be extended for an additional five years, or through April
30, 2016, on the condition that the Company's senior secured debt be rated at
"investment grade" by both Standard & Poor's Rating Service and Moody's Investor
Services, Inc. On April 8, 201I the Commission granted the Company's application in
OrderNo.3222l.
6. On January 26 2016, the Company requesteda that the authorities granted
under Case No. PAC-E-11-09 be extended for an additional five years, or through
April3g, 2021, on the condition that the Company's senior secured debt be rated at
"investment grade" by both Standard & Poor's Rating Service and Moody's lnvestor
Services, Inc. On March 4,2016 the Commission granted the Company's application in
Order No. 33476.
REQUEST
7. The Company respectfully requests that the Commission extend these short term
debt authorities an additional five years through April 30, 2026,by authorizing the Company to
2 In the Matter of the Application of PacifiCorp for authority to (1) issue its promissory notes to and
borrow from commercial Eanks for (a) not more than $1.5 billion under revolving credit agreements, and
ft) not more than $t. 5 billion under other borrowing arrangements; and (2) issue and sell its commercial
paper in principal amounts not to exceed $1. 5 billion outstanding at any one time. Case No. PAC-E-06-01.
3 Case No. PAC-E-I l-09.
a Case No. PAC-E-I6-03.
aJ
issue, from time to time, its unsecured short-term promissory notes to and borrow from U.S. or
foreign commercial banks (or their affiliates) under the following facilities: (a) not more than
$1.5 billion in aggregate principal amount outstanding at any one time under one or more
revolving credit agreements (Agreements); and (b) not more than $1.5 billion in aggregate
principal amount outstanding at any one time under other borrowing arrangements (Other
Arrangements). The Company also respectfully request authorization to issue and sell its
commercial paper (Paper) in the U.S. or overseas, from time to time through April 30, 2026, in
aggregate principal amounts not to exceed $1.5 billion outstanding at any one time; provided that
the aggregate principal amounts outstanding under the Agreements, Other Arrangements and
Paper not exceed $1.5 billion atany one time.
8. The Company currently has a $600 million revolving credit agreement expiring
June 30, 2022 and a $600 million revolving credit agreement expiring June 30, 2022 with one
remaining one-year extension option subject to lender consent. Under the terms of each of the
two credit agreements, the Company may borrow up to the full amount or have letters of credit
issued in an amount up to $300 million or a combination thereof.
9. Without the Commission's extension of the authorities most recently granted in
Order No. 33476, the Company will be unable to utilize the credit agreements after April 30,
2021, or to arrange for the issuance of letter of credit pursuant to the credit agreements. For the
Commission's reference copies of these credit agreements are provided as Attachment A to this
Application. Further, the Company will be significantly limited in its ability to issue commercial
paper after April 30, 2021, without the Commission's extension of the authorities previously
granted.
4
MODIFIED PROCEDURE
10. Rocky Mountain Power believes that consideration of the proposals
contained in this Application do not require an evidentiary proceeding, and accordingly
the Company requests that this Application be processed under RP 201 allowing for
consideration of issues under Modified Procedure, i.e., by written submissions rather than
by an evidentiary hearing.
WHEREFORE, Rocky Mountain Power respectfully requests that the
Commission issue an order on this matter on or before April 16, 2021, extending the
short-term debt authorities described herein for an additional five years, or through April
30, 2026, on the condition that the Companyos senior secured debt be rated at
"investment grade" by both Standard & Poor's Rating Service and Moody's Investor
Services, Inc. The Company also respectfully requests twenty (20) certified copies of the
Commission's final order in this matter.
DATED: January 25,2021
Respectfu lly submitted,
Emily L egner
Attorney for Rocky Mountain Power
5
Attachment A
EXECUTION VERSION
PUBLISHED CUSPNUMBERS: 69511YAJ1
695UYAQ5
u.s. $600,000,000
AMENDED AI\D RESTATED CREDIT AGREEMENT
Dated as of April30, 2018
Among
PACIFICORP
as the Borrower
THE INITIAL LENDERS NAMED HEREIN
as lnitial Lenders
JPMORGAN CIIASE BAI\K N.A.
as Administrative Agent
and
TIIE LC ISSUING BAI\KS
PARTY IIERETO FROM TIME TO TIME
as LC Issuing Banks
JPMORGAI\ CIIASE BAI\K N.A.
WELLS FARGO SECURTTIES, LLC
MUFG UNION BANK N.A.
MIZUHO BAIIIt LTD.
WELLS F'ARGO BANIT NATIONAL
ASSOCIATION
MUFG UNION BAt\rq N.A.
MIZUHOBANIILTD.
CITIBAI\IqN.A.
U.S. BANK NATIONAL ASSOCIATION
BARCLAYS BANKPLC
BNPPARIBAS
Syndication Agents
CITIGROT]P GLOBAL MARKETS INC.
U.S. BANK NATIONAL ASSOCIATION
BARCLAYS BANKPLC
BNP PARIBAS SECTruTIES CORP.
Joint Lead Anangers and Joint Booloanners
ROYALBAIIKOF'CANADA
THE BAI\KOFNOVASCOTIA
SUMITOMO MITSUI BANKING
CORPORATION
BA}[K OF MONTREAL CHICAC,O BRANCH
TIII BANK OF NEW YORK MELLON
KEYBAITK NATIONAL ASSOCIATION
Documentation Agents
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AI\D ACCOTINTING TERMS....
SECTION 1 .0 1 . Certain Defined Terms. ..........
SECTION 1.02. Computation of Time Periods.
Paee
I
I
ARTICLE II AMOUNTS AND TERMS OF THE EXTENSIONS OF CREDIT.................24
SECTION 1.03. Accounting Terms.
SECTION 1.04. Classification of Loans and Borrowings.
SECTION 1.05. Other lnterpretive Provisions.
SECTION 2.01. The Revolving Loans.
SECTION 2.02. Making the Revolving Loans.
SECTION 2.03. fReserved] .............
SECTION 2.04.Letters of Credit.
SECTION 2.05. Fees.
SECTION 2.06. Extension of the Termination Date.
SECTION 2.07.Increase of the Commitments.
SECTION 2.08. Termination or Reduction of the Commitments....
SECTION 2.09. Repayment of Loans.
SECTION 2.10. Evidence of lndebtedness.
SECTION 3.0 1 . Conditions Precedent to Effectiveness.....
SECTION 3.02. Conditions Precedent to each Extension of Credit....
SECTION 3.03. Conditions Precedent to Issuance of Each Bond Letter of Credit..
......................23
...............',...,.23
.,,,,,..,.,..........,23
.........,...,,.......23
.24
.24
.2s
.25
.........3 1
.........3 1
.........33
.........34
,....,,,.34
.........35
35
36
SECTION 2.ll.Interest on Loans
SECTION 2.12. Interest Rate Determination. ............
SECTION 2.13. Conversion of Revolving Loans. .........37
SECTION 2.1 4. Optional Prepayments of Loans. ...............38
39SECTION 2.1 5. Increased Costs.
SECTION 2.16. lllegality. .............
SECTION 2.17 . P ayments and Computations.
.............40
SECTION 2.18. Taxes.
.40
.42
.46SECTION 2.19. Sharing of Payments, Etc.
SECTION 2.20. Mitigation Obligations; Replacement of Lenders.
SECTION 2.21 . Defaulting Lenders
SECTION 2.22. CashCollateral. .....
ARTICLE III CONDITIONS PRECEDENT............ .........51
.,......,46
.........47
.........50
.............5 I
,.,,',..'.,,.52
.............53
ARTICLE IV REPRESENTATIONS AND WARRANTIES .............55
SECTION 4.01. Representations and Warranties of the Bonower
I
......55
ARTICLE V COVENANTS OF THE BORROWER
SECTION 5.0 1 . Affrmative Covenants.58
SECTION 5.02. Negative Covenants. .....
SECTION 5.03. Financial Covenant.
SECTION 6.01. Events of Default
SECTION 6.02. Actions in Respect of the Letters of credit upon Default.................
ARTICLE VII THE ADMINISTRATIVE AGENT.... .......66
SECTION 7.01. Appointment and Authority. .'...
SECTION 7.02. Rights as a Lender........
SECTION 7.03. Exculpatory Provisions.
SECTION 7.04. Reliance by Administrative Agent.......
SECTION 7.05. Resignation of Adminisffative Agent. .
SECTION 7.06. Non-Reliance on Administrative Agent and Other Lenders
SECTION 7.07. Indemnification.
SECTION 7.08. No Other Duties, etc.............
ARTICLE VIII MISCELLAI\EO
SECTION 8.0 1 . Amendments, Etc. ..................
SECTION 8.02. Notices, Etc.
SECTION 8.03. No Waiver; Remedies.
SECTION 8.04. Costs and Expenses; Indemnification.
SECTION 8.05. Rieht of Set-off.
SECTION 8.06. Binding Effect.
SECTION 8.07. Assignments and Participations.
SECTION 8.08. Confidentiality. ...
SECTION 8.09. Goveming Law
SECTION 8. 1 0. Severability.
SECTION 8. I 1 . Execution in Counterparts...................
SECTION 8. 1 2. Jurisdiction, Etc....
SECTION 8.13. Waiver of Jury Trial..........
SECTION 8.14. USA Patriot Act. ...........
SECTION 8.15. No Fiduciary Duty. .........
SECTION 8.16. Acknowledgement and Consent to Bail-In of EEA Financial
Institutions.
SECTION 8. I 7. Novation; Reaffirmation. .........
SECTION 8.18. Certain ERISA Matters.
63
66
.66
.66
.67
68
68
69
70
70
83
84
84
EXHIBITS AND SCHEDTILES
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT F-I
Form ofNotice of Borrowing
Form of Request for Issuance
Form of Assignment and Assumption
Form of U.S. Tax Compliance Certificate (For Foreign Lenders
That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Form of U.S. Tax Compliance Certificate (For Foreign Participants
That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Form of U.S. Tax Compliance Certificate (For Foreign Participants
That Are Partnerships For U.S. Federal lncome Tax Purposes)
Form of U.S. Tax Compliance Certificate (For Foreign Lenders
That Are Partnerships For U.S. Federal Income Tax Purposes)
EXHIBIT F-2
EXHIBIT F-3 -----------
EXHIBIT F-4 ---------------
SCHEDULE I --------------- List of Commitment Amounts and Applicable Lending Offices
SCHEDULE II List of Fronting Commitments
List of Material SubsidiariesSCHEDULE
SCHEDULE IV-------- Existing Letters of Credit
ll
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April30,2018 (as
further amended, restated, supplemented or otherwise modified from time to time, this
"Agreemenl'), among PACIFICORP, an Oregon corporation (the"Borrowef'), the banks,
financial institutions and other institutional lenders listed on the signatures pages hereof (the
*Initial Lenders"), JPMORGAN CHASE BANK, N.A. ("JPMCB"), as administrative agent (in
such capacity, the "Administrative Agenf') for the Lenders (as hereinafter defined), and the LC
Issuing Banks (as hereinafter defined) party hereto from time to time.
BACKGROUND
This Agreement amends and restates in its entirety the Credit Agreement dated as of June
30,2016, by and among the Borrower, JPMCB, as administrative agent, and the existing lenders
party thereto (as amended, restated, supplemented or otherwise modified from time to time, the
* Existing Credit Agreemenf').
In consideration of the premises and of the mutual agreements herein contained and
intending to be legally bound hereby, the parties hereto agree that the above-referenced existing
credit agreement be and it hereby is amended and restated to read in full as follows:
ARTICLE I
DEFINITIONS AI\D ACCOUNTING TERMS
SECTION 1.01. Certain DeJined Terms.
As used in this Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the terms defured):
"Administrative Agenf' has the meaning specified in the first paragraph of this
Agreement.
"Administrative Questionnaire" means an administrative questionnaire in a form
supplied by the Administrative Agent.
"AJtfiliate" means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, controls or is controlled by or is under
common control with the Person specified. For purposes of this definition, the term
"control" (including the terms "controlled by" and o'under common control with") of a
Person means the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the ability to
exercise voting power, by contract or otherwise.
"Agent Fee Lettef' means the letter agreement dated March 21,2018 among the
Borrower and the Administrative Agent, as amended, restated, supplemented or otherwise
modified from time to time.
2
"Agent Parties" has the meaning specified in Section 8.02(dxii).
"Agent's Account" means the account of the Administrative Agent designated
from time to time in a written notice to the Lenders and the Borrower as the account to
which the Lenders are to fund Borrowings and the Borrower is to make payments under
this Agreement.
"Anti-Corruption Laws" means all laws, rules, and regulations of any jurisdiction
applicable to the Borrower or any Subsidiary of the Borrower or their respective activities
from time to time concerning or relating to bribery or comrption, including, without
limitation, (i) the United States Foreign Comrpt Practices Act of 1977, as amended from
time to time, and the applicable regulations thereunder, and (ii) to the extent applicable, the
United Kingdom's Bribery Act2010, as amended from time to time.
"Applicable Loht" means (i) all applicable common law and principles of equity
and (ii) all applicable provisions of all (A) constitutions, statutes, rules, regulations and
orders of all Governmental Authorities, (B) Governmental Approvals and (C) orders,
decisions, judgments and decrees of all courts (whether at law or in equity or admiralty)
and arbitrators.
"Applicable Lending Offtce" means, with respect to each Lender, such Lender's
Domestic Lending Office in the case of a Base Rate Loan and such Lender's Eurodollar
Lending Office in the case of a Eurodollar Rate Revolving Loan.
"Applicable Margin" means, with respect to any Base Rate Loan and any
Eurodollar Rate Revolving Loan, at all times during which any Applicable Rating Level
set forth below is in effect, the rate per annum (except as provided below) for such Loan
set forth below next to such Applicable Rating Level:
Applicable
Rating Level
Applicable Margin
for Eurodollar
Rate
Revolvine Loans
Applicable Margin
for Base Rate
Loans
I 0.6250/o 0.000%
2 0.7s0%0.000%
.,0.875%0.000%
4 1.000%0.000%
5 t.r25%0.t25%
provided, that the Applicable Margins set forth above shall be increased, for each
Applicable Rating Level, upon the occurrence and during the continuance of any Event of
Default by 2.00% per annum. Any change in the Applicable Margin resulting from a
change in the Applicable Rating Level shall become effective upon the date of
announcement of any change in the Moody's Rating or the S&P Rating that results in such
change in the Applicable Rating Level.
J
"Applicable Rating Levet'at any time shall be determined in accordance with the
then-applicable S&P Rating or the then-applicable Moody's Rating as follows:
The Applicable Rating Level for any day shall be determined based upon the higher of the
S&P Rating and the Moody's Rating in effect on such day. If the S&P Rating and the
Moody's Rating are not the same (i.e., a "split rating"), the higher (better) of such ratings
shall control, unless the ratings differ by more than one level, in which case the rating one
level below the higher of the two ratings shall control.
"Approved Funt' means any Fund that is administered or managed by (i) a Lender,
(ii) an Affrliate of a Lender or (iii) an entity or an Affiliate of an entity that administers or
manages a Lender.
"Assignment and Assumption" means an assignment and assumption entered into
by a Lender and an Eligible Assignee (with the consent of any party whose consent is
required by Section 8.07), and accepted by the Administrative Agent, in substantially the
form of Exhibit C or any other form approved by the Administrative Agent.
"Available Commitmenfs" means, on any day, the aggregate unused Commitments,
computed after giving effect to all Extensions of Credit made or to be made on such day,
the application of proceeds therefrom and all prepayments and repayments of Revolving
Loans made on such day.
"Bail-In Action" means the exercise of any Write-Down and Conversion Powers
by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial
Institution.
"Bail-In Legislation" means, with respect to any EEA Member Country
implementing Article 55 of Directive20l4l5glEU of the European Parliament and of the
Council of the European Union, the implementing law for such EEA Member Country
from time to time which is described in the EU Bail-In Legislation Schedule.
"Bankruptcy Evenf'means, with respect to any Person, such Person becomes the
subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator,
trustee, administrator, custodian, assignee for the benefit of creditors or similar Person
charged with reorganization or liquidation of its business or assets (including the Federal
Deposit lnsurance Corporation or any other Governmental Authority acting in a similar
!GVl;r'
1S&P Rating AA- or higher or Moody's Rating Aa3 or higher
2S&P Ratine Aa or Moody's Rating Al
3S&P Ratine A or Moody's Rating A2
4S&P Rating A- or Moody's Rating ,A.3
5S&P Rating BBB+ or Moody's Rating Baal or below or
unrated
4
capacity) appointed for it, provided that a Bankruptcy Event shall not result solely by virtue
of any ownership interest, or the acquisition of any ownership interest, in such Person or a
direct or indirect parent company of such Person by a Governmental Authority if and for
so long as such ownership interest does not result in or provide such Person with immunity
from the jurisdiction of courts within the United States or from the enforcement of
judgments orwrits of attachment on its assets orpermit such Person (or such Govemmental
Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with
such Lender.
"Base Rate" means a flucfuating interest rate per annum in effect from time to time,
which rate per annum shall at all times be equal to the highest ofl
(i) the rate of interest announced by JPMCB from time to time as JPMCB's
prime rate;
(ii) ll2 of lYo per annum above the NYFRB Rate in effect on such date; and
(iii) the rate of interestp er annum (rounded upwards to the nearest lll00 of lo/o)
appearing on the Service equal to the one-month London interbank offered
rate for deposits in Dollars as determined at approximately 11:00 A.M.
(Iondon time) on such day (or if such day is not a Business Day, on the
next preceding Business Day), plus 1%; provided, however, if more than
one rate is specified on the Service, the applicable rate shall be the
arithmetic mean of all such rates plus l%
; provided, that in no event shall the Base Rate be less than0o/o.
ooBase Rate Loan" means a Loan that bears interest as provided in Section Z.Il(a).
"Beneftt Plaro " means any of (a) an "employee benefit plan" (as defined in ERISA)
that is subject to Title I of ERISA, (b) a "plan" as defined in Section 4975 of the Intemal
Revenue Code or (c) any Person whose assets include (for purposes of ERISA Section
3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Internal Revenue
Code) the assets of any such 'oemployee benefit plan" or "plan".
*Berkshire Hathaway" means Berkshire Hathaway Inc.
"Bond Event of Defoult'has the meaning specified in Section 6.01.
"Bond Letter of Credif' means any standby or direct pay leffer of credit issued by
an LC Issuing Bank pursuant to Section 2.04 to support certain obligations to pay the
principal of, interest on and/or purchase or redemption price of Bonds.
'oBonds" means pollution control revenue bonds or industrial development revenue
bonds (or similar obligations, however designated) issued pursuant to an lndenture between
the Trustee and the Issuer named therein.
"Borrowef'has the meaning specified in the first paragraph of this Agreement.
5
"Borrowing" means a borrowing by the Borrower consisting of simultaneous
Revolving Loans of the same Tlpe, having the same Interest Period and ratably made or
Converted on the same day by each of the Lenders pursuant to Section 2.02 or 2.13, as the
case may be. All Revolving Loans to the Borrower of the same Type, having the same
Interest Period and made or Converted on the same day shall be deemed a single Borrowing
hereunder until repaid or next Converted.
"Borrowing Date" means the date of any Borrowing.
"Business Day" means a day of the year on which banks are not required or
authorized by law to close inNew York City or Los Angeles and, if the applicable Business
Day relates to any Eurodollar Rate Revolving Loans,"Business Day" also includes a day
on which dealings are carried on in the London interbank market.
"Cash Collateralize" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of one or more of the LC Issuing Banks and the
Lenders, as collateral for LC Outstandings and obligations of Lenders to fund participations
in respect of LC Outstandings, cash or deposit account balances or, if the Administrative
Ag"nt and each applicable LC Issuing Bank shall agree in their sole discretion, other credit
support, in each iase prrsuant to documentation in form and substance reasonably
satisfactory to the Administrative Agent and each applicable LC Issuing Bank. "Cash
Collateral'shall have a meaning correlative to the foregoing and shall include the proceeds
of such cash collateral and other credit support.
"Change in Law" means the occurrence, after the date of this Agreement, of any
of the following: (i) the adoption of any law, rule, regulation or treaty, (ii) any change in
any law, rule, regulation or treaty or in the administration, interpretation, implementation
or application thereof by any Governmental Authority or (iii) the making or issuance of
anyiequest, rule, guideline or directive (whether or not having the force of law) by any
Govemmental Authority; provided that notwithstanding anything herein to the contrary,
(x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests,
rules, guidelines or directives (whether or not having the force of law) thereunder or issued
in connection therewith and (y) all requests, rules, guidelines or directives (whether or not
having the force of law) promulgated by the Bank for International Settlements, the Basel
Committee on Banking Supervision (or any successor or similar authority) or the United
States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case
be deemed to be a "Change in Law," regardless of the date enacted, adopted or issued.
"Change of Controf'has the meaning specified in Section 6.01(h).
"Closing Date" means APril 30, 2018.
'oCommitmenf' means, for each Lender, the obligation of such Lender to make
Revolving Loans to the Borrower hereunder in an agglegate amount no greater than the
amount set forth on Schedule I hereto or, if such Lender has entered into any Assignment
and Assumption, set forth for such Lender in the Register maintained by the Administrative
I 0.0s0%
2 0.060%
J 0.075%
4 0.r00%
5 0.r50%
6
Agent pursuant to Section 8.07(c), in each such case as such amount may be from time to
time increased pursuant to Section 2.07 or reduced pursuant to Section 2.08.
"Commitment Fee Rate" means, at any time, the rate per annum set forth below
next to the Applicable Rating Level in effect at such time:
A change in the Commitment Fee Rate resulting from a change in the Applicable Rating
Level shall become effective upon the date of public announcement of a change in the
Moody's Rating or the S&P Rating that results in a change in the Applicable Rating Level.
"Commitment Percentage" means, as to any Lender as of any date of
determination, the percentage describing such Lender's pro rata share of the Commitrnents
set forth initially on Schedule I hereto or in the Register from time to time; provided thatin the case of Section 2.21 when a Defaulting Lender shall exist, "Commitment
Percentage" means the percentage of the total Commitments (disregarding any Defaulting
Lender's Commitment) represented by such Lender's Commitment. If the Commitments
have terminated or expired, the Commitment Percentages shall be determined based upon
the Commitments most recently in effect, giving effect to any assignments and to any
Lender's status as a Defaulting Lender at the time of determination.
"Commitments" means the aggregate of each Lender's Commitment hereunder.
"Communications" has the meaning specified in Section 8.02(dXiD.
"Conftdential Informatioz" means information that the Borrower fumishes to the
Administrative Agent, the Joint Lead Arrangers or any Lender in a writing designated as
confidential, but does not include any such information that is or becomes generally
available to the public orthat is orbecomes available to the Administrative Agent, the Joint
Lead Arrangers or such Lender from a source other than the Borrower that has no
obligation to maintain the confidentiality of such information.
"Consolidated Assets" means, on any date of determination, the total of all assets
(including revaluations thereof as a result of commercial appraisals, price level restatement
or otherwise) appearing on the consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries most recently delivered to the Lenders pursuant to Section
5.01(h) as of such date of determination.
"Consolidated Capital" means the sum (without duplication) of (i) Consolidated
Debt ofthe Borrower (without giving effect to the proviso in the definition of Consolidated
7
Debt) and (ii) consolidated equity of all classes (whether coiltmon, preferred, mandatorily
convertible preferred or preference) of the Borrower.
"Consolidated Debf'of the Borrower means the total principal amount of all Debt
of the Borrower and its Consolidated Subsidiaries; provided that Guaranties of Debt shall
not be included in such total principal amount.
"Consolidated Subsidia4y" means, with respect to any Person at any time, any
Subsidiary or other Person the accounts of which would be consolidated with those of such
first Person in its consolidated financial statements in accordance with GAAP.
'oConvertr" ooConversion" afld "Convertet' each refers to a conversion of
Revolving Loans of one Type into Revolving Loans of the other Type, or the selection of
a new, or the renewal of the same, Interest Period for Eurodollar Rate Revolving Loans,
pursuant to Section 2.12 or 2.13.
*Credit Party- means the Administrative Agent, any LC Issuing Bank or any
Lender.
"Custodian" means, for any series of Bonds, any Person acting as bailee and agent
for the Administrative Agent (on behalf of the applicable LC Issuing Bank and the Lenders)
under any Pledge Agteement relating to such Bonds.
uDebt- of any Person means, at any date, without duplication, (i) all indebtedness
of such Person for borrowed money, (ii) all obligations of such Person for the deferred
purchase price ofproperty or services (other than trade payables incurred in the ordinary
iourre ofsuch Person's business), (iii) all obligations ofsuch Person evidenced by notes,
bonds, debentures or other similar insffuments, (iv) all obligations of such Person as lessee
under leases that have been, in accordance with GAAP, recorded as capital leases, (v) all
obligations of such Person in respect of reimbursement agleements with respect to
acceptances, letters of credit (other than trade letters of credit) or similar extensions of
credit, and (vi) all Guaranties. Solely for the purpose of calculating compliance with the
covenant in Section 5.03, Debt shall not include Debt of the Borrower or its Consolidated
Subsidiaries arising from the qualification of an arrangement as a lease due to that
arrangement conveying the right to use or tb control the use of property, plant or equipment
underthe application ofthe Financial Accounting Standards Board's Accounting Standards
Codification Topic 840 - Leases paragraph 840-10-15-6 (or the Accounting Standards
Codification Topic 842 -Leases paragraphs 842-10-15-3 through 5), nor shall Debt include
Debt of any variable interest entity consolidated by PacifiCorp under the requirements of
Topic 810 - Consolidation.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of America,
and all other liquidation, conservatorship, bankruptcy, assignment for ttre benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reotgatization, or similar
debtor relief laws of the United States or other applicable jurisdictions from time to time
in effect.
"Declining Lender" has the meaning specified in Section 2.06(b).
8
'oDefoulf'means any Event of Default or any event that would constitute an Event
of Default but for the requirement that notice be given or time elapse or both.
"Defoulting Lendef' means, subject to Section z.2r(b), any Lender that (i) has
failed, within two Business Days after the date required to be funded or paid, to (A) fund
all or any portion of its Loans, (B) fund any portion of its participations in Letters of Credit
or (C) pay over to any Credit Party any other amount required to be paid by it under this
Agreement, unless, in the case of clause (A) above, such failure is the result of such
Lender's good faith determination that one or more conditions precedent to funding (each
of which conditions precedent, together with any applicable default, shall be specifically
identified in writing) has not been satisfied, as notified by such Lender to the
Administrative Agent and the Borrower in such writing, (ii) has notified the Borrower or
any Credit Party in writing that it does not intend to comply with any of its funding
obligations under this Agreement or has made a public statement to the effect that it does
not intend to comply with its funding obligations under this Agreement (unless such writing
or public statement relates to such Lender's obligation to fund a Loan hereunder and such
position is based on such Lender's good faith determination that a condition precedent
(which condition precedent, together with any applicable default, shall be specifically
identified in such writing or public statement) to funding a l-oan under this Agreement
cannot be satisfied), (iii) has failed, within three Business Days after written request by the
Administrative Agent, any LC Issuing Bank or the Borrower, acting in good faith, to
confirm in writing to such requesting party that it will comply with its obligations to fund
prospective Loans and participations in then outstanding Leffers of Credit under this
Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to
clause (iii) upon such requesting party's receipt of such written confirmation in form and
substance reasonably satisfactory to it and the Administrative Agent, or (iv) has become
the subject of a (A) Bankruptcy Event or (B) Bail-In Action. Any determination by the
Administrative Agent that a Lender is a Defaulting Lender under any one or more of
clauses (i) through (iv) above shall be conclusive and binding absent manifest error, and
such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.21(b)) upon
delivery of written notice of such determination to the Borrower, each LC Issuing Bank
and each Lender.
"Designated Lender" has the meaning specified in Section 2.07(a).
"Dollars" and the symbol "$" mean lawful currency of the United States of
America.
ooDomestic Lending Offtce" means, with respect to any Lender, the office of such
Lender specified as its "Domestic Lending Office" opposite its name on Schedule I hereto
or in the Assignment and Assumption pursuant to which it became a Lender, or such other
office of such Lender as such Lender may from time to time specify in writing to the
Borrower and the Administrative Agent.
*EEA Financial Institution" means (a) any institution established in any EEA
Member Country which is subject to the supervision of an EEA Resolution Authority, (b)
any entity established in an EEA Member Country which is a parent of an institution
9
described in clause (a) of this definition, or (c) any institution established in an EEA
Member Country which is a subsidiary of an institution described in clauses (a) or (b) of
this definition and is subject to consolidated supervision with its parent.
*EEA Member Country" means any of the member states of the European Union,
Iceland, Liechtenstein, and Norway.
*EEA Resolution Authoritlt" means any public administrative authority or any
Person entrusted with public administative authority of any EEA Member Country
(including any delegee) having responsibility for the resolution of any EEA Financial
Institution.
"Eligible Assigned' means any Person that meets the requirements to be an
assignee *d"r Section 8.07(bxiii), (v) and (vi) (subject to such consents, if any, as may be
required under Section 8.07(bxiii)).
"Environmental Law" means any federal, state, local or foreign statute, law,
ordinance, rule, regulation, code, order, judgment, decree or judicial or agency
interpretation, policy or guidance relating to pollution or protection of the environment,
health, safety or natural resoruces, including, without limitation, those relating to the use,
handling, transportation, treatment, storage, disposal, release or discharge of Hazardous
Materials.
,,ERISA" means the Employee Retirement Income security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued thereunder.
*ERISA Afft.liate" means, with respect to any Person, each trade or business
(whether or not incorporated) that is considered to be a single employer with such entity
within the meaning of Section 414(b), (c), (m) or (o) of the lrternal Revenue Code.
"ERISA Evenf',means (i) any "reportable event," as defined in section 4043 of
ERISA with respect to a Pension Plan (other than an event as to which the PBGC has
waived the requirement of Section 4043(a) of ERISA that it be notified of such event); (ii)
the faiture to make a required contribution to any Pension Plan that would result in the
imposition of a lien or other encumbrance or the provision of security under Section 430
ofitre lntemal Revenue Code or Section 303 or 4068 of ERISA, or there being or arising
any "unpaid minimum required contribution" or "accumulated funding deficiency" (as
dehned or otherwise set forth in Section 4971 of the lnternal Revenue Code or Part 3 of
Subtitle B of Title I of ERISA), whether or not waived, or the fiting of any request for or
receipt of a minimum funding waiver under Section 412 of the lnternal Revenue Code with
r..p"it to any Pension Plan or Multiemployer Plan, or a determination that any Pension
Plan is, or is reasonably expected to be, in at-risk status under Title IV of ERISA; (iii) the
filing of a notice of intent to terminate any Pension Plan, if such termination would require
material additional contributions in order to be considered a standard termination within
the meaning of Section 4041(b) of ERISA, the filing under Section 4041(c) of ERISA of a
notice of intent to terminate any Pension Plan, or the termination of any Pension Plan under
Section 4041(c) of ERISA; (iv) the institution of proceedings, or the occulrence of an event
10
or condition that would reasonably be expected to constitute grounds for the institution of
proceedings by the PBGC, under Section 4042 of ERISA, for the termination of or the
appointment of a trustee to administer, any Pension Plan; (v) the complete or partial
withdrawal of the Borrower or any of its ERISA Affiliates from a Multiemployer Plan, the
reorgarization or insolvency under Title tV of ERISA of any Multiemployer Plan, or the
receipt by the Borrower or any of its ERISA Affiliates of any notice that aMultiemployer
Plan is in endangered or critical status under Section 305 of ERISA; (vi) the failure by the
Borrower or any of its ERISA Affiliates to comply with ERISA or the related provisions
of the Internal Revenue Code with respect to any Pension Plan; (vii) the Borrower or any
of its ERISA Affiliates incurring any liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA);
or (viii) the failure by the Borrower or any of its Subsidiaries to comply with Applicable
Law with respect to any Foreign Plan.
"EU Bail-In Legislation Schedale" means the EU Bail-In Legislation Schedule
published bythe Loan Market Association (or any successor Person), as in effect from time
to time.
"Eurocurrency Liabilities" has the meaning assigned to that term in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from time to time.
"Eurodollar Lending offtce" means, with respect to any Lender, the office of such
Lender specified as its o'Eurodollar Lending Office" opposite its name on Schedule I hereto
or in the Assignment and Assumptionpursuant to which it became a Lender (or, if no such
office is specified, its Domestic Lending Office), or such other office of such Lender as
such Lender may from time to time specify in writing to the Borrower and the
Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar Rate
Revolving Loan comprising part of the same Borrowing, the rate of interest per annum
(rounded upward to the nearest 1/100 of lo/o) as calculated by ICE Benchmark
Administration Limited (or any other person which takes over the administration of that
rate) and obtained through a nationally recognized service such as the Dow Jones Market
Service (Telerate), Reuters or other such service then being used by the Administrative
Agent to ascertain such rates of interest (in each case, the "Service") as the London
interbank offered rate for deposits in Dollars at approximately 11:00 A.M. (London time)
two Business Days before the first day of such Interest Period for a period equal to such
Interest Period, but in no event less than 0%.
"Eurodollar Rate Reserve Percentage" of any Lender for any lnterest Period for
each Eurodollar Rate Revolving Loan means the reserve percentage applicable to such
Lender during such Interest Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in such Interest Period
during which any such percentage shall be so applicable) under regulations issued from
time to time by the Board of Govemors of the Federal Reserve System (or any successor)
for determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) then applicable to such
l1
Lender with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that includes deposits by
reference to which the interest rate on Eurodollar Rate Revolving Loans is determined)
having a term equal to such Interest Period.
"Eurodollar Rate Revolving LoAn" means a Revolving Loan that bears interest as
provided in Section 2.11(b).
"Eurodollar Successor Rate" has the meaning specified in Section 2.12(c).
"Events of Defoulf'has the meaning specified in Section 6.01.
*Excluded Taxes" means any of the following Taxes imposed on or with respect
to a Recipient or required to be withheld or deducted from a payment to a Recipient, (i)
Taxes imposed on or measured by net income (however denominated), franchise Taxes,
and branCh profits Taxes, in each case, (A) imposed as a result of such Recipient being
organized under the laws of, or having its principal office or, in the case of any Lender, its
Afptcable Lending Office located in, the jurisdiction imposing such Tax (or any political
.,rbdiuiriol thereof) or (B) that are Other Connection Taxes, (ii) in the case of a Lender,
withholding Taxes imposed on amounts payable to or for the account of such Lender with
respect to an applicable interest in a Loan or Commitrnent pursuant to a law in effect on
the,date on whiih (A) such Lender acquires such interest in the Loan or Commitment (other
than pursuant to an assignment request by the Borrower under Section 2.20(b)) or (B) such
Lender changes its Applicable Lending Office, except in each case to the extent that,
pursuant to Siction 2.18, amounts with respect to such Taxes were payable either to such
Lender's assignor immediately before such Lender became a party hereto or to such Lender
immediately before it changed its Applicable Lending Office, (iii) Taxes attributable to
such Recipient's failure to comply with Section 2.18(g) and (iv) any Taxes imposed under
FATCA.
*Existing Credit Agreemenf'hasthe meaning specified in the second paragraph of
this Agreement.
*Existing Letters of Credif'shall mean each of the letters of uedit described by
applicant, date of issuance, letter of credit number, amount, beneficiary and the date of
expiry on Schedule IV hereto.
,,Ertension Effective Date" has the meaning specified in Section 2.06(c).
"Ertension of Credif' means the making of a Borrowing, the issuance of a Letter
of Credit or the amendment of any Letter of Credit having the effect of extending the stated
termination date thereof or increasing the maximum amount available to be drawn
thereunder. Forpurposes ofthis Agreement, a Conversion shall not constitute an Extension
of Credit.
"FATCA" means Sections 1471 throughl4T4 of the Internal Revenue Code, as of
the date of this Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with) any current or future
t2
regulations or official interpretations thereof, any agreements entered into pursuant to
Section 1471(b)(1) of the Internal Revenue Code, any intergovernmental agreement
entered into in connection with the implementation of such Sections of the Internal
Revenue Code and any fiscal or regulatory legislation, rules or practices adopted pursuant
to any such intergovernmental agreement.
"Federal Funds Effictive Rate" means, for any day, the rate calculated by the
NYFRB based on such day's Federal funds transactions by depositary institutions (as
determined in such manner as the NYFRB shall set forth on its public website from time
to time) and published on the next succeeding Business Day by the NYFRB as the Federal
funds effective rate.
"Fee Letters" means (i) the letter agreements, each dated as of March 2I, 2OlB,
among the Borrower and certain of the Joint Lead Arrangers and (ii) the Agent Fee Letter,
in each case, as amended, restated, supplemented or otherwise modified from time to time.
*FERC'means the U.S. Federal Energy Regulatory Commission.
*Foreign Lendef'means a Lender that is not a U.S. Person.
"Foreign Plan" means any pension, profit-sharing, deferred compensation, or other
employee benefit plan, program or arrangement (other than a Pension Plan or a
Multiemployer Plan) maintained by any Subsidiary of the Borrower that, under applicable
local foreign law, is required to be funded through a trust or other funding vehicle.
"Fronting Commitmenl' means, with respect to any LC Issuing Bank, the
aggregate stated amount of all Letters of Credit that such LC Issuing Bank agrees to issue
(subject to the LC Commitment Amount), as modified from time to time pursuant to an
agreement signed by such LC Issuing Bank and the Borrower. With respect to each Lender
that is an LC Issuing Bank on the date hereof, such LC Issuing Bank's Fronting
Commitment is listed on Schedule II, and with respect to any Lender that becomes an LC
Issuing Bank after the date hereof such Lender's Fronting Commitment will be the amount
agreed between the Borrower and such Lender at the time that such Lender becomes an LC
Issuing Bank, in each case, as such Fronting Commitment may be modified in accordance
with the terms of thisAgreement.
"Fronting Exposure" means, at anytime there is a Defaulting Lender, with respect
to any LC Issuing Bank, such Defaulting Lender's Commitment Percentage of the LC
Outstandings with respect to Letters of Credit issued by such LC Issuing Bank other than
LC Outstandings as to which such Defaulting Lender's participation obligation has been
reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
"Funt'means any Person (other than a natural Person) that is (or will be) engaged
in making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its activities.
*GAAF'has the meaning specified in Section 1.03.
13
"Governmental Approvaf'means any authorization, consent, approval, license or
exemption of, registration or frling with, or report or notice to, any Governmental
Authority.
"Governmental Authority" means the government of the United States of America
or any other nation, or of any political subdivision thereof, whether state or local, and any
agency, authority, insffumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government (including any supra-national bodies such as the
European Union or the European Central Bank).
"Guaranq)" of any Person means (i) any obligation, contingent or otherwise, of
such Person to pay any Debt of any other Person and (ii) all reasonably quantifrable
obligations of such Person under indemnities or under support or capital contribution
agreements, and other reasonably quantifiable obligations (contingent or otherwise) to
purchase or otherwise to assure a creditor against loss in respect of, or to assure an obligee
against loss in respect of, any Debt of any other Person guaranteed directly or indirectly in
any manner by such Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (A) to pay or purchase such Debt or to advance or supply funds for
the payment or purchase of such Debt, (B) to purchase, sell or lease (as lessee or lessor)
property, or to purchase or sell services, primarily for the purpose of enabling the debtor to
make payment of such Debt or to assure the holder of such Debt against loss, (C) to supply
funds to or in any other manner invest in the debtor (including any agreement to pay for
property or services irrespective of whether such property is received or such services are
rendered) or (D) otherwise to assure a creditor against loss; provided that the term
o'Guaranty" shall not include endorsements for collection or deposit in the ordinary course
of business or the grant of a Lien in connection with Project Finance Debt'
"Hazardous Materials" means (i) petroleum and petroleum products, byproducts
or breakdown products, radioactive materials, asbestos-containing materials,
polychlorinated biphenyls and radon gas and (ii) any other chemicals, materials or
iubstances designated, classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Indemnilied Pafi" has the meaning specified in Section 8.04(b).
,,Indemnilied Taxes" means (i) Taxes, other than Excluded Taxes, imposed on or
with respect to any payment made by or on account of any obligation of the Borrower under
any Loan Document and (ii) to the extent not otherwise described in (i), Other Taxes.
"fndenture" means, for any series of Bonds, the indenture pursuant to which such
Bonds are issued and any supplement thereto relating to such Bonds'
*Initial Lenders" has the meaning specified in the first paragraph of this
Agreement.
*Interest Period' means, for each Eurodollar Rate Revolving Loan comprising part
of the same Borrowing, the period commencing on the date of such Eurodollar Rate
t4
Revolving [,oan or the date of the Conversion of any Base Rate Revolving Loan into such
Eurodollar Rate Revolving Loan and ending on the last day of the period selected by the
Borrower pursuant to the provisions below and, thereafter, with respect to Eurodollar Rate
Revolving Loans, each subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period selected by the Borrower
pursuant to the provisions below. The duration of each such Interest Period shall be one,
two, three or six months or such other period acceptable to all the Lenders, as the Borrower
may, upon notice received by the Administrative Agent not later than 12:00 noon (New
York City Time) on the third Business Day prior to the first day of such Interest Period,
select; provided, however, that:
the Borrower may not select any lnterest Period that ends after the latest
Termination Date in effect at such time;
(ii) lnterest Periods commencing on the same date for Eurodollar Rate
Revolving Loans comprising part of the same Borrowing shall be of the
same duration;
(iii) whenever the last day of any Interest Period would otherwise occur on a day
other than a Business Day, the last day of such Interest Period shall be
extended to occur on the next succeeding BusinessDay, provided, however,
that, if such extension would cause the last day of such lnterest Period to
occur in the next following calendar month, the last day of such Lrterest
Period shall occur on the next preceding Business Day; and
(iv) whenever the first day of any Interest Period occurs on a day of an initial
calendar month for which there is no numerically corresponding day in the
calendar month that succeeds such initial calendar month by the number of
months equal to the number of months in such Interest Period, such Interest
Period shall end on the last Business Day of such succeeding calendar
month.
ufnternal Revenue Codd'means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued thereunder.
"/ny'means the U.S. Internal Revenue Service.
"fssuer" means, for any series of Bonds, the issuer of such Bonds under the
applicable lndenture.
'ofssuer Agreemenf' means, for any series of Bonds, the agreement between the
applicable Issuer and the Borrower pursuant to which (i) the proceeds of such Bonds are
loaned by such Issuer to the Borrower, together with any promissory note or other
instrument evidencing the Debt of the Borrower under such agreement, or (ii) the Borrower
agrees to pay the purchase price of, or rent with respect to, the facilities financed or
refinanced with the proceeds of such Bonds.
(i)
15
*Joint Lead Arrangers" means JPMorgan Chase Bank, N.A., Wells Fargo
Securities, LLC, MUFG Union Bank, N.A., Mizuho Bank, Ltd., Citigroup Global Markets
lnc., U.S. Bank National Association, Barclays Bank PLC and BNP Paribas Securities
Corp.
"JPMCB" has the meaning specified in the recital of parties to this Agreement.
"LC Collateral Accounl" has the meaning specified in Section 6.02.
'oLC Commitment Amounf'means $300,000,000 as the same may be reduced
permanently from time to time pursuant to Section 2.08.
*LC Fee" has the meaning specified in Section 2.05(c).
"LC Fronting Fee" hasthe meaning specified in Section 2.05(d).
"LC Issuing Banll'means each Lender identified as an "LC Issuing Bank" on
Schedule II and any other Lender or Affiliate of a Lender that shall agree to issue a Letter
of Credit pursuant to Section 2.04.
"LC Outstandings" means, on any date of determination, the sum of (i) the
undrawn stated amounts of all Letters of Credit that are outstanding on such date plus (ii)
the aggregate principal amount of all unpaid reimbursement obligations of the Borrower
or, r*h Oate wittr respect to payments made by any LC Issuing Bank under any Letter of
Credit (excluding reimbursement obligations that have been repaid with the proceeds of
any Borrowing). The LC Outstandings with respect to any Lender at any time shall be its
Commitment Percentage of the total LC Outstandings at such time.
"LC Payment Notice- has the meaning specified in Section 2.0a@).
"Lenders" means the Initial Lenders and each Person that shall become party hereto
pursuant to an Assignment and Assumption, other than any such Person that ceases to be a
party hereto pursuant to an Assignment and Assumption.
"Letter of Credif' means (a) a standby letter of credit issued by an LC Issuing Bank
pursuant to Section 2.04 or a Bond Letter of Credit, in each case, as amended, modified or
extended in accordance with the terms of this Agreement and (b) any Existing Letter of
Credit, in each case, as such letter of credit may be amended, modified, extended, renewed
or replaced from time to time in accordance with the terms of this Agreement.
*Lienu means any lien, security interest or other charge or encumbrance of any
kind, or any other type of preferential arrangement, including, without limitation, the lien
or retained security title of a conditional vendor and any easement, right of way or other
encumbrance on title to real property.
"Loan Documents" means, collectively, (i) this Agreement, (ii) the Fee Letters and
(iii) any promissory note issued pursuant to Section 2.10(d).
t6
"Loans" means the loans made by the Lenders to the Borrower pursuant to this
Agreement.
uMargin Regulations" means Regulations T, U and X of the Board of Governors
of the Federal Reserve System, as in effect from time to time.
*Margin Stock" has the meaning specified in the Margin Regulations.
"Material Adverse Efficf'means a material adverse effect on (i) on the business,
operations, properties, financial condition, assets or liabilities (including, without
limitation, contingent liabilities) of the Borrower and its Subsidiaries, taken as a whole, (ii)
the ability of the Borrower to perform its obligations under the Loan Documents or (iii) the
ability of the Administrative Agent, any LC Issuing Bank or any Lender to enforce its rights
under the Loan Documents.
"Material Subsidiaries" means any Subsidiary of the Borrower with respect to
which (x) the Borrower's percentage ownership interest in such Subsidiary multiplied by
(y) the book value of the Consolidated Assets of such Subsidiary represents atleast l5o/o
of the Consolidated Assets of the Borrower as reflected in the latest financial statements of
the Borrower delivered pursuant to clause (i) or (ii) of Section 5.01(h).
"Minimum Collateral Amounf' means, at any time, (i) with respect to Cash
Collateral consisting of cash or deposit account balances, an amount equal to 103 % of the
Fronting Exposure of all LC Issuing Banks with respect to Letters of Credit issued and
outstanding at such time and (ii) otherwise, an amount determined by the Administrative
Agent and the LC Issuing Banks in their sole discretion.
o'Moody's" means Moody's Investors Service, Inc.
"Moody's Rating" means, on any date of determination, the rating most recently
announced by Moody's with respect to any senior unsecured, non-credit enhanced Debt of
the Borrower or, if such rating is not available, the corporate credit rating of the Borrower
most recently announced by Moody's.
"Multiemployer Plan" means any "multiemployer plan" (as such term is defined
in Section a001(a)(3) of ERISA), which is contributed to by (or to which there is or may
be an obligation to contribute of) the Borrower or any of its ERISA Affiliates or with
respect to which the Borrower or any of its ERISA Affiliates has, or could reasonably be
expected to have, any liability.
"New York City Timd'means the time in New York, New York.
"Non-Consenting Lender" means any Lender that does not approve any consent,
waiver or amendment that (i) requires the approval of all affected Lenders in accordance
with the terms of Section 8.01 and (ii) has been approved by the Required Lenders.
"Non-Defaulting Lender" means, at the time of determination, a Lender that is not
a Defaulting Lender.
t7
"non-performing Lendef'has the meaning specified in Section 2-04(f).
*Notice of Borrowing" has the meaning specified in Section 2.02(a).
"NYFRB" means the Federal Reserve Bank of New York.
"NYFRB Rate" means, for any day, the greater of (a) the Federal Funds Effective
Rate in effect on such day and (b) the Ovemight Bank Funding Rate in effect on such day
(or for any day that is not a Business Day, for the immediately preceding Business Day);
provided that if none of such rates are published for any day that is a Business Day, the
ierm 'NYFRB Rate" means the rate for a Federal funds transaction quoted at I l:00 A.M.
(New York City Time) on such day received by the Administrative Agent from a Federal
funds broker oi recognized standing selected by it; providd further, that if any of the
aforesaid rates shall be less than zero, such rate shall be deemed to be zero for purposes of
this Agreement.
"OFA7'means The OfIice of Foreign Assets Control of the U.S. Department of
the Treasury.
*Official Statement" means, for any series of Bonds, the official statement,
reoffering-tircular or similar disclosure document (however designated) relating to such
Bonds and the applicable LC Issuing Bank, as amended and supplemented from time to
time, and all documents incorporated therein (or in any such supplement or amendment)
by reference.
"Other Connection Toxcs" means, with respect to any Recipient, Taxes imposed
as a result of a present or former connection between such Recipient and the jurisdiction
imposing such Tax (other than connections arising solely from such Recipient having
executed, delivered, become aparty to, performed its obligations under, received payments
under, received or perfected a security interest under, engaged in any other transaction
pursuant to or enforced any Loan Document).
o'Other Taxes" means all present or future stamp, court or documentary, intangible,
recording, filing or similar Taxes that arise from any payment made under, from the
execution, delivery, performance, enforcement or registration of, from the receipt or
perfection of a security interest under, or otherwise with respect to, any Loan Document,
ixcept any such Taxes imposed with respect to an assignment (other than an assignment
made pursuant to Section2.20).
"Outstanding Credits" means, on any date of determination, the sum of (i) the
aggregate principal amount of all Loans outstanding on such date plus (ii) the LC
Oistandings on such date. The Outstanding Credits with respect to any Lender at any
time shall be its Commitnent Percentage of the total Outstanding Credits at such time.
"Overnight Bank Funding Rate" means, for any day, the rate comprised of both
overnight Federal funds and ovemight Eurodollar borrowings by U.S.-managed banking
officeJ of depository institutions (as such composite rate shall be determined by the
NYFRB as set forth on its public website from time to time) and published on the next
t8
succeeding Business Day by the NYFRB as an overnight bank funding rate (from and after
such date as the NYFRB shall commence to publish such composite rate).
"Participanl'has the meaning assigned to such term in Section 8.07(d).
"Pafiicipant Registef'has the meaning specified in Section 8.07(d).
"Patriot Acf'has the meaning specified in Section 8.14.
"PBGC'means the U.S. Pension Benefit Guaranty Corporation (or any successor).
"Pension Plan" means any "employee pension benefit plan" (as defined in Section
3(2) of ERISA) (other than a Multiemployer Plan), subject to the provisions of Title IV of
ERISA or Section 412 of the Internal Revenue Code or Section 302 of ERISA, maintained
or contributed to by the Borrower or any of its ERISA Affiliates or to which the Borrower
or any of its ERISA Affiliates has or may have an obligation to contribute (or is deemed
under Section 4069 of ERISA to have maintained or contributed to or to have had an
obligation to conhibute to, or otherwise to have liability with respect to) such plan.
"Permitted Liens" means such of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been commenced: (i) Liens
for taxes, assessments and governmental charges or levies to the extent not required to be
paid under Section 5.01(a) hereof; (ii) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens, and other similar Liens arising in
the ordinary course of business; (iii) Liens incurred or deposits made to secure obligations
under workers' compensation laws or similar legislation or to secure public or statutory
obligations; (iv) easements, rights of way and other encumbrances on title to real property
that do not render title to the property encumbered thereby unmarketable, including zoning
and landmarking resffictions; (v) any judgment Lien, unless an Event of Default under
Section 6.01(e) shall have occurred and be continuing with respect thereto; (vi) any Lien
on any asset of any Person existing at the time such Person is acquired by or merged or
consolidated with or into the Borrower or any Subsidiary of the Borrower and not created
in contemplation of such event; (vii) pledges and deposits made in the ordinary course of
business to secure the performance of bids, trade contracts (other than for Debt), operating
leases and surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business; (viii) Liens upon or in any real property
or equipment acquired, constructed, improved or held by the Borrower or any Subsidiary
in the ordinary course of business to secure the purchase price of such property or
equipment or to secure Debt incurred solely for the purpose of financing the acquisition,
construction or improvement of such property or equipment, or Liens existing on such
property or equipment at the time of its acquisition (other than any such Liens created in
contemplation of such acquisition that were not incurred to finance the acquisition of such
property), (ix) Liens securing Project Finance Debt, (x) any Lien on the Borrower's or any
Material Subsidiary's interest in Bonds or cash or cash equivalents securing (A) the
obligation of the Borrower or any Material Subsidiary to reimburse the issuer of a letter of
credit supporting payments to be made in respect of such Bonds (including any Bond Letter
of Credit) for a drawing on such letter of credit for the purpose of purchasing Bonds or (B)
t9
the obligation of the Borrower or any Material Subsidiary to reimburse or repay amounts
advanced under any facility entered into to provide liquidity or credit support for any issue
of Bonds; and (xi) extensions, renewals or replacements of any Lien described in clause
(vi), (vii), (viii), (ix) or (x) for the same or a lesser amottrfi,provided, however, that no such
Lien shall extend to or cover any properties (other than after-acquired property already
within the scope of the relevant Lien grant) not theretofore subject to the Lien being
extended, renewed or replaced.
"Person" means any natural Person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.
"Platform" has the meaning specified in Section 8.02(dxi).
"Pledge Agreemenf' means, for any series of Bonds, the pledge agreement or
custodian agreement (or similar agreement, however designated), among the
Administrative Agent, the Borrower and the applicable Custodian with respect to such
Bonds, setting forth certain terms relating to the pledge and/or ownership of any such
Bonds pending the remarketing thereof pursuant to the applicable Remarketing Agreement.
"Project Finance Debf' means Debt of any Subsidiary of the Borrower (i) that is
(A) not recourse to the Borrower other than with respect to Liens granted by the Borrower
on direct or indirect equity interests in such Subsidiary to secure such Debt and limited
Guaranties of, or equity commitments with respect to, such Debt by the Borrower, which
Liens, limited Guaranties and equity commitments are of a type consistent with other
limited recourse project financings, and other than customary contractual carve-outs to the
non-recourse nature of such Debt consistent with other limited recourse project financings,
and (B) incurred in connection with the acquisition, development, construction or
improvement of any project, single purpose or other fixed assets of such Subsidiary,
inCtuOing Debt assumed in connection with the acquisition of such assets, or (ii) that
represents an extension, renewal, replacement or refinancing of the foregoing, provided
thit, in the case of a replacement or refinancing, the principal amount of such new Debt
shall not exceed the principal amount of the Debt being replaced or refinanced plus 10%
of such principal amount.
"PTE' means a prohibited transaction class exemption issued by the U.S.
Department of Labor, as any such exemption may be amended from time to time.
"Rating Decline" means the occurrence ofthe following on, or within 90 days after,
the earlier of (i) the occurrence of a Change of Control and (ii) the earlier of (x) the date of
public notice of the occurrence of a Change of Control and (y) the date of the public notice
of the Borrower's (or its direct or indirect parent company's) intention to effect a Change
of Control, which 90-day period will be extended so long as the S&P Rating or Moody's
Rating is under publicly announced consideration for possible downgrading by S&P or
Moody's, as applicable: the S&P Rating is reduced to any rating level below BBB+ or the
Moody's Rating is reduced to any rating level below Baal (or both the S&P Rating and the
Moody's Rating become unavailable).
20
"Recipienf'means (i) the Administrative Agent, (ii) any Lender and (iii) any LC
Issuing Bank, as applicable.
"Register" has the meaning specified in Section S.07(c).
"Reimbursement Amounf'has the meaning specified in Section 2.04(d).
*Related Documents" means, for any series of Bonds, such Bonds and the
Indenture, the Issuer Agreement, any Remarketing Agreement and any Pledge Agreement
relating to such Bonds.
"Related Parties" means, with respect to any Person, such Person's Affiliates and
the partners, directors, officers, employees, agents, trustees, administrators, managers,
advisors and representatives of such Person and of such Person's Affiliates.
"Remarketing Agenf' means, for any series of Bonds, any Person acting in the
capacity of remarketing agent for such Bonds pursuant to a Remarketing Agreement
relating to such Bonds.
"Remarketing Agreemenf'means, for any series of Bonds, any agreement or other
arrangement pursuant to which the applicable Remarketing Agent has agreed to act in such
capacity with respect to such Bonds tendered for purchase pursuant to the applicable
Indenture.
"Removal Effictive Date" has the meaning specified in Section 7.05(b).
"Reportable Compliance Evenf'means that the Borrower or any of its Subsidiaries
becomes a Sanctioned Person, or is charged by indictunent, criminal complaint or similar
charging instrument, arraigned, or custodially detained in connection with any Anti-
Comrption Law or any predicate crime to any Anti-Comrption Law.
"Requestfor fssuance" means a request made pursuant to Section2.O4 in the form
of Exhibit B.
"Required Lenders" means atany time Lenders owed in excess of 50%o of the then
aggregate unpaid principal amount of the Revolving Loans and participation obligations
with respect to the LC Outstandings, or, if there are no Outstanding Credits, Lenders having
in excess of 50o/o in interest of the Commitrnents (without giving effect to any termination
in whole of the Commitments pursuant to Section 6.01). The Commitments, outstanding
Loans and participation obligations with respect to the LC Outstandings for any Defaulting
Lender shall be disregarded in determining Required Lenders at any time.
"Restgnation Elfective Date" has the meaning specified in Section 7.05(a).
"Revolving Loan" means a Loan by a Lender to the Borrower pursuant to Section
2.02 aspart of a Borrowing and refers to a Base Rate Revolving Loan or a Eurodollar Rate
Revolving Loan.
2l
"sanctioned Country" means, at any time, a country, region or territory that is the
subject or target of comprehensive Sanctions (at the time of this Agreement, Cuba, han,
North Korea, Sudan, Syria and Crimea).
"sanctioned Person" means, at any time, (a) any Person listed in any Sanctions-
related list of designated Persons maintained by OFAC, the U.S. Department of State or
the U.S. Department of the Treasury, or maintained by the United Nations Security
Council, the European Union, or Her Majesty's Treasury of the United Kingdom, as may
be amended, supplemented or substituted from time to time, (b) any Person organized or
ordinarily resident or located in a Sanctioned Country or (c) any Person confolled by, or
acting on behalf of, any such Person described in clause (a) or (b). For purposes of this
definition, oocontrol" of a Person shall mean the direct or indirect (x) ownership of, orpower
to vote, 25Yo or more of the issued and outstanding equity interests having ordinary voting
power for the election of directors of such Person or other Persons performing similar
functions for such Person, or (y) power to direct or cause the direction of the management
and policies of such Person whether by ownership of equity interests, contract or otherwise.
"sanctions" means economic or financial sanctions or trade embargoes imposed,
administered or enforced from time to time by (a) the U.S. government, including those
administered by OFAC, the U.S. Department of State or the U.S. Deparfinent of Treasury,
or (b) the United Nations Security Council, the European Union or Her Majesty's Treasury
of the United Kingdom.
"S&P" means S&P Global Ratings, a business unit of S&P Global, Inc.
*S&P Rating!' means, on any date of determination, the rating most recently
announced by S&P with respect to any senior unsecured, non-credit enhanced Debt of the
Borrower or, if such rating is not available, the corporate credit rating of the Borrower most
recently announced by S&P.
"SEC" means the U.S. Securities and Exchange Commission'
,,service" has the meaning set forth in the definition of "Eurodollar Rate".
*Stated Expiry Date" means the stated expiration date of any Letter of Credit issued
or deemed to be issued pursuant to this Agreement; provided, however, that no Stated
Expiry Date may be requested or included in any such Letter of Credit where (i) such date
*o.,td be later than the fifth Business Day preceding the Termination Date then applicable
to the Lender that is the LC Issuing Bank for such Letter of Credit, (ii) such date would be
later than one year after the date of issuance of such Letter of Credit (subject, for the
avoidance of doubt, to the ability to provide for an automatic renewal mechanic in
accordance with Section 2.04(a)), or (iii) after taking into account (A) the respective
Termination Dates then in effect with respect to all Lenders on the date of issuance or any
extension of such Letter of Credit, and (B) the respective Stated Expiry Dates then in effect
with respect to all other Letters of Credit then outstanding, the maximum amount of the
LC Outstandings under all Letters of Credit (including such Letter of Credit) then
outstanding would exceed the total LC Commitment Amount scheduled to be in effect at
22
any time during the period such Letter of Credit is scheduled to remain in effect, as
determined by the Administrative Agent.
"subsidiary" of any Person means any co{poration, partnership, joint venture,
limited liability company, trust or estate of which (or in which) more than 50% of (i) the
issued and outstanding capital stock having ordinary voting power to elect a majority of
the board of directors of such corporation (irrespective of whether at the time capital stock
of any other class or classes of such corporation shall or might have voting power upon the
occurrence of any contingency), (ii) the interest in the capital or profits of such limited
liability company, partnership or joint venture or (iii) the beneficial interest in such trust or
estate is at the time directly or indirectly owned or controlled by such Person, by such
Person and one or more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Toxes" means all present or fufure taxes, levies, imposts, duties, deductions,
withholdings (including backup wittrholding), assessments, fees or other charges imposed
by any Govemmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Termination Date" means the earlier to occur of (i) June 30,2021, or such later
date that may be established for any Lender from time to time pursuant to Section 2.06
hereof, and (ii) the date of termination in whole of the Commitments available to the
Borrower pursuant to Section 2.08 or 6.01.
"Trutstee" means, for any series of Bonds, the Person acting in the capacity of
trustee for the holders of such Bonds under the lndenture pursuant to which such Bonds
were issued.
"Type" refers to the distinction between Loans bearing interest at the Base Rate and
Loans bearing interest at the Eurodollar Rate.
"U.5. Perso,n" means any Person that is a "United States person,, as defined in
Section 7701(a)(30) of the lnternal Revenue Code.
"U.5. Tax Compliance Certificate" has the meaning assigned to such term in
Section 2.18(gXii).
"Withholding Agenf'means the Borrower and the Administrative Agent.
"Write-Down and Conversion Powers" means, with respect to any EEA
Resolution Authority, the write-down and conversion powers of such EEA Resolution
Authority from time to time under the Bail-ln Legislation for the applicable EEA Member
Country, which write-down and conversion powers are described in the EU Bail-In
Legislation Schedule.
23
SECTION 1.02. Computation of Time Periods.
In this Agreement in the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms.
All accounting terms not specifically defined herein shall be construed in accordance with
generally accepted accounting principles as in effect from time to time ("GAAP'). If any
iAccounting Change" (as defined below) shall occur and such change results in a change in the
calculation of financial covenants, standards or terms in this Agreement, and either the Borrower
or the Required Lenders (through the Administrative Agent) shall request the same to the other
parties hereto in writing, the Borrower and the Administrative Agent shall enter into negotiations
io amend the affected provisions of this Agreement with the desired result that the criteria for
evaluating the Borrowir's consolidated financial condition and results of operations shall be
substantially the same after such Accounting Change as if such Accounting Change had not been
made. Once such request has been made, until such time as such an amendment shall have been
executed and delivered by the Borrower, the Administrative Agent and the Required Lenders, all
financial covenants, standards and terms in this Agreement shall continue to be calculated or
construed as if such Accounting Change had not occurred. "Accounting Change" means a change
in accounting principles required by the promulgation of any final rule, regulation, pronouncement
or opinion by the Financial Accounting Standards Board of the American Institute of Certified
Public Accountants or, if applicable, the SEC (or successors thereto or agencies with similar
functions).
SECTION 1.04. ClassiJication of Loans and Borrowings-
For purposes of this Agreement, Loans may be classified and referred to by Type (e.9., a
"Eurodollar Rate Loan"). Borrowings also may be classified and referred to by Type (e.9., a
"Eurodollar Rate Borrowing").
SECTION 1.05. Other Interpretive Provisions.
As used herein, except as otherwise specified herein, (i) references to any Person include
its successors and assigns and, in the case of any Governmental Authority, any Person succeeding
to its functions and capacities; (ii) references to any Applicable Law include amendments,
supplements and successors thereto; (iii) references to specific sections, articles, annexes,
r"hidrrl"r and exhibits are to this Agreement; (iv) words importing any gender include the other
gender; (v) the singular includes the plural and the plural includes the singular; (vr) the words
;including", 'oinclude" and "includes" shall be deemed to be followed by the words "without
limitatiof'; (vii) captions and headings are for ease of reference only and shall not affect the
construction hereof; and (viii) references to any time of day shall be to New York City Time unless
otherwise specified.
24
ARTICLE II
AMOUNTS AND TERMS OF THE EXTENSIONS OF CREDIT
SECTION 2.01. The Revolving Loans.
(a) Each Lender severally agrees, on the terms and conditions hereinafter set forth, to
make Revolving Loans to the Borrower from time to time on any Business Day during the period
from the date hereof until the Termination Date applicable to such Lender in an aggregate
outstanding amount not to exceed at any time such Lender's Available Commitment at such time.
Within the limits of each Lender's Commitment and as hereinabove and hereinafter provided,
including without limitation Section 2.01(b), the Borrower may request a Borrowing hereunder,
and repay or prepay Revolving Lnans pursuant to Section 2.14 and,utilize the resulting increase in
the Available Commitments for further Extensions of Credit in accordance with the terms hereof.
(b) In no event shall the Borrower be entitled to request or receive any Borrowing that
(i) would exceed the Available Commitments or (ii) would cause the Outstanding Credits to exceed
the Commitments.
SECTION 2.02. Making the Revolving Loans.
(a) Each Borrowing shall be in an amount not less than $1,000,000 (or, if less, the
Available Commitments at such time) or an integral multiple of $100,000 in excess thereof and
shall consist of Revolving Loans of the same Type made on the same day by the Lenders ratably
according to their respective Commitnent Percentages. Each Borrowing shall be made on notice,
given not later than l:00 P.M. (New York City Time) on the third Business Day prior to the date
of the proposed Borrowing in the case of a Borrowing consisting of Eurodollar Rate Revolving
Loans, or not later than l:00 P.M. (New York City Time) on the date of the proposed Borrowing
in the case of a Borrowing consisting of Base Rate Revolving Loans, by the Borrower to the
Administrative Agent, which shall give to each Lender prompt written notice thereof. Each such
notice of a Revolving Borrowing (a "Notice of Borrowing!') shall be by telephone, confirmed
immediately in writing or facsimile in substantially the form of Exhibit A hereto, specifying therein
the requested (i) Borrowing Date for such Borrowing, (ii) Tlpe of Revolving Loans comprising
such Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the case of a Borrowing
consisting of Eurodollar Rate Revolving Loans, the initial Interest Period for each such Revolving
Loan. Each Lender shall, before 2:00 P.M. (New York City Time) (or, for Borrowings consisting
of Base Rate Revolving Loans for which notice was provided to the Lenders after 12:00 noon
(New York City Time) but no later than l:00 P.M. (New York City Time), before 3:00 P.M. (New
York City Time)) on the applicable Borrowing Date, make available for the account of its
Applicable Lending Office to the Administrative Agent at the Agent's Account, in same day funds,
such Lender's ratable portion of the Borrowing to be made on such Borrowing Date. After the
Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set
forth in Article III, the Administrative Agent will make such funds available to the Borrower no
later than 3:30 P.M. (New York City Time) in such manner as the Borrower shall have specified
in the applicable Notice of Borrowing.
(b) Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrower
may not select Eurodollar Rate Revolving Loans for any Borrowing if the aggregate amount of
25
such Borrowing is less than $1,000,000 or if the obligation of the Lenders to make Eurodollar Rate
Revolving Loans shall then be suspended pursuant to Section 2.12b), 2.13 ot 2.16, and (ii)
Borrowings of more than one Type may be outstanding at the same time; provided, however,thete
shall be not more than 10 Borrowings at any one time outstanding.
(c) Each Notice of Borrowing shall be irrevocable and binding on the Borrower. In
the case of anyBorrowing that the relatedNotice of Borrowing specifies is to comprise Eurodollar
Rate Revolving Loans, the Borrower shall indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to fulfrll on or before the date specified in such
Notice of Borrowing for such Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (including loss of anticipated profits), cost or expense
incuned by reason of the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Revolving Loan to be made by such Lender as part of such Borrowing when
such Revolving Loan, as a result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received written notice from a Lender
prior to any Borrowing Date or, in the case of a Base Rate Loan, prior to the time of Borrowing,
that such Lender will not make available to the Administrative Agent such Lender's Loan as part
of the Borrowing to be made on such Borrowing Date, the Administrative Agent may, but shall
not be required to, assume that such Lender has made such portion available to the Administrative
Agent on such Borrowing Date in accordance with subsection (a) of this Section 2.02, and the
Administrative Agent may (but it shall not be required to), in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to the extent that such
Lender shall not have so made such Loan available to the Administative Agent, such Lender and
the Borrower severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount, together with interest thereon, for each day from the date such amount is
made available to the Borrower until the date such amount is repaid to the Administrative Agent,
at (i) in the case of the Borrower, the interest rate applicable at the time to Loans comprising such
Borrowing and (ii) in the case of such Lender, the Federal Funds Effective Rate. If such Lender
shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Loan as part of such Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Loan to be made by it as part of any
Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan
on the date of such Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Loan to be made by such other Lender on the date of any Borrowing.
SECTION2.03. [Reservedl
SECTION 2.04. Letters of Credit
(a) Subject to the terms and conditions hereof, each LC Issuing Bank agees to issue
Letters of Credit from time to time for the account of the Borrower (or to extend the stated maturity
thereof or to amend or modify the terms thereof), in an aggregate stated amount not exceeding
such LC Issuing Bank's Fronting Commitment, up to a maximum aggregate stated amount for all
Leffers of Credit at any one time outstanding equal to the LC Commihnent Amount, on not less
than two Business Days' prior notice thereof by delivery of (x) a Request for Issuance to the
26
Administrative Agent and (y) such LC Issuing Bank's standard form of Letter of Credit application
for the requested Letter of Credit (including, for direct pay Letters of Credit, any reimbursement
agreement or other standard form required by such LC Issuing Bank) to the letter of credit
department of such LC Issuing Bank for the account of the Borrower. Each Letter of Credit shall
be issued in a form acceptable to the applicable LC Issuing Bank. Each Request for Issuance shall
specify (i) the identity of the applicable LC Issuing Bank, (ii) the date (which shall be a Business
Day) of issuance of such Letter of Credit (or the date of effectiveness of such extension,
modification or amendment) and the Stated Expiry Date thereoi (iii) the proposed stated amount
of such Leffer of Credit (which amount (A) shall not be less than $100,000 and (B) may be subject
to any automatic increase and reinstatement provisions), (iv) the name and address of the
beneficiary of such Letter of Credit and (v) a statement of drawing conditions applicable to such
Letter of Credit, and if such Request for Issuance relates to an amendment or modification of a
Letter of Credit, it shall be accompanied by the consent of the beneficiary of the Letter of Credit
thereto (except in the case of an extension of the Stated Expiry Date of any Bond Letter of Credit
where no consent of the beneficiary is required for such extension). If so requested by the
Borrower, a Letter of Credit mayprovide that it is automatically renewable for additional one-year
periods if subject to an ability of the applicable LC Issuing Bank to not renew by giving notice of
the same to the beneficiary of such Letter of Credit. Each Request for Issuance shall be irrevocable
unless modified or rescinded by the Borrower prior to the issuance by the applicable LC Issuing
Bank of the requested Letter of Credit or prior to the effectiveness of the requested extension,
modification or amendment to a Letter of Credit, as applicable. Upon fulfrllment of the applicable
conditions precedent and the other requirements set forth herein, the relevant LC Issuing Bank
shall issue (or extend, amend or modify) such Leffer of Credit and provide notice and a copy
thereof to the Administrative Agent, which shall promptly furnish copies thereof to the Lenders
that shall so request; provided that the LC Issuing Bank shall not issue or amend any Letter of
Credit if such LC Issuing Bank has received notice from the Adminishative Agent that the
applicable conditions precedent have not been satisfied. The Existing Leffers of Credit shall, as of
the Closing Date, be deemed to have been issued as Letters of Credit hereunder and subject to and
governed by the terms of this Agreement. (i) On the Closing Date with respect to all Existing
Letters of Credit and (ii) upon the date of issuance with respect to all other Letters of Credit, each
Lender shall be deemed, without further action by any party hereto, to have irrevocably and
unconditionally purchased from such LC Issuing Bank without recourse a participation in such
Letter of Credit equal to such Lender's Commitment Percentage of the aggregate amount available
to be drawn under such Letter of Credit. Each Lender's participation obligations in respect of
Existing Letters of Credit shall be governed by this Agreement. Upon each modification of a
Letter of Credit by any LC Issuing Bank which modifies the aggregate amount available to be
drawn under such Letter of Credit, such LC Issuing Bank and the Lenders shall be deemed, without
further action by any party hereto, to have purchased or sold, as appropriate, participations in such
Letter of Credit such that each Lender's participation in such Letter of Credit shall equal such
Lender's Commitment Percentage of such modified aggregate amount available to be drawn under
such Letter of Credit. Each Letter of Credit shall utilize the Commitment of each Lender by an
amount equal to the amount of suchparticipation. Without limiting the foregoing, any LC Issuing
Bank that issues a Bond Letter of Credit agrees that (i) all Bonds pledged to such LC Issuing Bank
pursuant to any applicable Pledge Agreement or otherwise registered in the name of such LC
Issuing Bank pursuant to the other Related Document will be held for the benefit of such LC
27
Issuing Bank and the Lenders and (ii) to apply and/or remit all proceeds from the sale or
remarketing of such Bonds in accordance with Section 2.17(f).
(b) The Borrower may from time to time appoint one or more additional Lenders (with
the consent of any such Lender, which consent may be withheld in the sole discretion of each
Lender) to act, "ither directly or through an Affiliate of such Lender, as an LC Issuing Bank
hereunder. Any such appointment and the terms thereof shall be evidenced in a separate written
agreement executed by the Borrower and the relevant LC Issuing Bank, a copy of which agreement
shall be delivered by the Borrower to the Administrative Agent. The Administrative Agent shall
give prompt notice of any such appointment to the other Lenders. Upon such appointnent, if and
for.o long as such Lender shall have any obligation to issue any Letter of Credit hereunder or any
Letter of Credit issued by such Lender shall remain outstanding, such lrnder shall be deemed to
be, and shall have all the rights and obligations of, an "LC Issuing Bank" under this Agreement.
(c) No Letter of Credit shall be requested, issued or modified hereunder if, after the
issuance or modification thereof, (i) the Outstanding Credits would exceed the Commitments then
scheduled to be in effect until the latest Termination Date, (ii) that portion of the LC Outstandings
arising from Letters of Credit issued by an LC Issuing Bank would exceed the amount of such LC
Issuing Bank's Fronting Commitment or (iii) the LC Outstandings would exceed the LC
Commitment Amount. No LC Issuing Bank shall be under any obligation to issue any Letter of
Credit if any order, judgment or decree of any Governmental Authority shall by its terms purport
to enjoin oriestrain such LC Issuing Bank from issuing such Letter of Credit, or any law applicable
to suth LC Issuing Bank or any request or directive (whether or not having the force of law) from
any Governmental Authority with jurisdiction over such LC Issuing Bank shall prohibit, or request
that the LC Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of
Credit in particulai or shall impose upon the LC Issuing Bank with respect to such Letter of Credit
any restriction, reserve or capital requirement (for which the LC Issuing Bank is not otherwise
compensated or required to be compensated hereunder), which restriction, reserve or capital
requirement *us ,ot in effect on the date hereof, or shall impose upon the LC Issuing Bank any
losi, cost or expense (not reimbursed or required to be reimbursed) that was not applicable on the
date hereof and that the LC Issuing Bank in good faith deems material to it.
(d) The Borrower hereby agrees to pay to the Administrative Agent for the account of
each LC Issuing Bank and each Lender that has funded its participation in the reimbursement
obligations of the Borrower pursuant to subsection (e) below, on demand made by such LC Issuing
Bank to the Borrower, on and after each date on which such LC Issuing Bank shall pay any amount
under any Letter of Credit issued by such LC Issuing Bank, a sum equal to the amount so paid (the
"Reimbursement Amounf'). Any Reimbursement Amount shall bear interest, payable on
demand, from the date so paid by such LC Issuing Bank until repayment to such LC Issuing Bank
in fulI at a fluctuating interest rate per annum equal to the interest rate applicable to Base Rate
Loans plus, if any amount paid by such LC Issuing Bank under a Letter of Credit is not reimbursed
by the Borrower within three Business Days, 2%. The Borrower may satisfy its obligation
hireunder to repay the Reimbursement Amount by requesting a Borrowing under Section 2'02
(and which Borrowing shall be subject to the conditions in Section 2.02) n the amount of such
Reimbursement Amount, and the proceeds of such Borrowing may be applied to satisff the
Borrower's obligations to such LC Issuing Bank or the Lenders, as the case may be. The
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Borrower's obligation to pay any Reimbursement Amount in respect of the Existing Leffers of
Credit shall be govemed by the terms of this Agreement.
(e) If any LC Issuing Bank shall not have been reimbursed in full for any
Reimbursement Amount in respect of a Letter of Credit issued by such LC Issuing Bank on the
date of such payment, such LC Issuing Bank shall give the Administrative Agent and each Lender
prompt notice thereof (an "LC Payment Notice") no later than l2:00 noon (New York City Time)
on the Business Day immediately succeeding the date of such payment by such LC Issuing Bank.
Each Lender shall fund the participation that such Lender purchased pursuant to Section 2.04(a)
by paying to the Administrative Agent for the account of such LC Issuing Bank an amount equal
to such Lender's Commitment Percentage of such Reimbursement Amount paid by such LC
Issuing Bank, plus interest on such amount at arateper annum equal to the Federal Funds Effective
Rate, for the first three days from the date of the payment by such LC Issuing Bank, and, thereafter,
until the date of payment to such LC Issuing Bank by such Lender, at arate of interest equal to the
rate applicable to Base Rate Loans. Each such payment by a Lender shall be made not later than
3:00 P.M. (New York City Time) on the later to occur of (i) the Business Day immediately
following the date of such payment by such LC Issuing Bank and (ii) the Business Day on which
such Lender shall have received an LC Payment Notice from such LC Issuing Bank. Each
Lender's obligation to make each such payment to the Administrative Agent for the account of
such LC Issuing Bank shall be several and shall not be affected by the occrurence or continuance
of a Default or the failure of any other Lender to make any payment under this Section 2.04(e).
Each Lender further agrees that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.
(0 The failure of any Lender to make any payment to the Administrative Agent for the
account of any LC Issuing Bank in accordance with subsection (e) above shall not relieve any
other Lender of its obligation to make payrnent, but no Lender shall be responsible for the failure
of any other Lender. If any Lender (a"non-performing Lendef') shall fail to make any payment
to the Administrative Agent for the account of any LC Issuing Bank in accordance with subsection
(e) above, then for so long as such failure shall continue, such LC Issuing Bank shall be deemed,
for purposes of Sections 6.01 and 8.01 hereof, to be a Lender owed a Borrowing in an amount
equal to the outstanding principal amount due and payable by such non-performing Lender to the
Administrative Agent for the account of such LC Issuing Bank pursuant to subsection (e) above.
Any non-performing Lender and the Borrower (without waiving any claim against such non-
performing Lender for such non-performing Lender's failure to fund its participation in the
reimbursement obligations of the Borrower under subsection (e) above) severally agree to pay to
the Administrative Agent for the account of such LC Issuing Bank forthwith on demand such
amount, together with interest thereon for each day from the date such non-performing Lender
would have funded its participation had it complied with the requirements of subsection (e) above
until the date such amount is paid to the Administrative Agent at (i) in the case of the Borrower,
the interest rate applicable at the time to Base Rate Loans plus, if any amount paid by such LC
Issuing Bank under a Letter of Credit is not reimbursed by the Borrower within three Business
Days, 2o/o,inaccordance with Section2.04(d), and (ii) in the case of such non-performing Lender,
the Federal Funds Effective Rate, for the first three days and, thereafter, at arate of interest equal
to the rate applicable to Base Rate Loans.
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(g) The payment obligations of each Lender under Section 2.0a@) and of the Borrower
under this Agreement in respect of any payment under any Leffer of Credit shall be absolute,
unconditionai and irrevocabie, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any other
agreement or instrument relating thereto or to such Letter of Credit;
(ii) any amendment or waiver of, or any consent to departure from, the terms of
this Agreement or such Letter of Credit;
(iii) the existence of any claim, set-off, defense or other right that the Borrower
may have at any time against any beneficiary, or any transferee, of such Letter of Credit
(or any Persons for whom any such beneficiary or any such transferee may be acting), any
LC Issuing Bank, or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby, thereby or by such Letter of Credit, or any unrelated
transaction;
(iv) any statement or any other document presented under such Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being unfue or inaccurate in any respect;
(v) payment in good faith by any LC Issuing Bank under the Letter of Credit
issued by such LC Issuing Bank against presentation of a draft or certificate that does not
comply with the terms of such Letter of Credit;
(vD the use that may be made of any Letter of Credit by, or any act or omission
of, the beneficiary of any Letter of Credit (or any Person for which the beneficiary may be
acting); or
(vii) any other circumstance or happening whatsoever, whether or not similar to
any of the foregoing.
(h) Without limiting any other provision of this Section 2.04, for purposes of this
Section 2.04 a11y LC Issuing Bank may rely upon any oral, telephonic, telegraphic, facsimile,
electronic, written or other communication believed in good faith to have been authorized by the
Borrower, whether or not given or signed by an authorized Person of the Borrower'
(i) The Borrower assumes all risks of the acts and omissions of any beneficiary or
transferee of any Letter of Credit. Neither any LC Issuing Bank, the Lenders nor any of their
respective officers, directors, employees, agents or Affiliates shall be liable or responsible for, and
the Borrower's reimbursement obligation in respect of any Letter of Credit shall not be affected
by, (i) the use that may be made of such Letter of Credit or any acts or omissions of any beneficiary
or transferee thereof in connection therewith; (ii) the validity, sufficiency or genuineness of
documents, or of any endorsement thereon, even if such documents should prove to be in any or
all respects invalid, insufficient, fraudulent or forged; (iii) payment by any LC Issuing Bank
againsi presentation of documents that do not comply with the terms of such Letter of Credit,
including failure of any documents to bear any reference or adequate reference to such Letter of
30
Credit; (iv) any dispute between or among the Borrower, any of its Affiliates, the beneficiary of
any Letter of Credit or any financing institution or other party to whom any Letter of Credit may
be transferred or any claims or defenses whatsoever of the Borrower or of its Affiliates against the
beneficiary of any Letter of Credit or any such transferee; (v) any error, omission, intemrption or
delay in transmission, dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit; or (vi) any other circumstances whatsoever in making or
failing to make payment under such Letter of Credit, except that the Borrower and each Lender
shall have the right to bring suit against each LC Issuing Bank, and each LC Issuing Bank shall be
liable to the Borrower and any Lender, to the extent of any direct, as opposed to consequential,
damages suffered by the Borrower or such Lender that the Borrower or such Lender proves, in a
court of competent jurisdiction by final and nonappealable judgment, were caused by such LC
Issuing Bank's willful misconduct or gross negligence. In furtherance and not in limitation of the
foregoing, each LC Issuing Bank may accept sight drafts and accompanylng certificates presented
under the Letter of Credit issued by such LC Issuing Bank that appear on their face to be in
substantial compliance with the terms and conditions ofthe Letter of Credit, without responsibility
for further investigation, regardless of any notice or information to the contrary and payment
against such documents shall not constitute willful misconduct or gross negligence by such LC
Issuing Bank. Notwithstanding the foregoing, no Lender shall be obligated to indemnifu the
Borrower for damages caused by any LC Issuing Bank's willful misconduct or gross negligence.
0) In the event of any inconsistency between the terms and conditions of this
Agreement and the terms and conditions of any application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, an LC Issuing Bank relating to any Leffer of
Credit issued by such LC Issuing Bank (including, for the avoidance of doubt, any Existing Letter
of Credit), the terms and conditions of this Agreement shall control. Unless otherwise specified
herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of
such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of
Credit that, by its terms or the terms of any application or other agreement related thereto, provides
for one or more automatic increases in the stated amount thereof, the amount of such Letter of
Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving
effect to all such increases, whether or not such maximum stated amount is in effect at such time.
(k) Any LC Issuing Bank may resign at any time by giving written notice thereof to
the Administrative Agent, Lenders, the other LC Issuing Banks (if any) and the Borrower, provided
that (i) there are no Leffers of Credit outstanding with respect to such LC Issuing Bank at such
time or (ii) unless the Borrower shall have agreed otherwise, another Lender or Affrliate thereof
reasonably acceptable to the Borrower has agreed to serve as an LC Issuing Bank and commits in
writing to issue one or more Letters of Credit in an aggregate amount at least equal to those of the
resigning LC Issuing Bank. After the resignation of an LC Issuing Bank hereunder, such resigning
LC Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations
of an LC Issuing Bank under this Agreement and the other Loan Documents with respect to Letters
of Credit issued by it prior to such resignation, but shall not be required to issue additional Letters
of Credit or to extend, renew or increase any existing Letter of Credit. Upon any such resignation,
the Borrower and the resigning LC Issuing Bank may agree to replace or terminate any outstanding
Letters of Credit issued by such LC Issuing Bank and to designate one or more Lenders as LC
Issuing Banks to replace such LC Issuing Bank.
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SECTION 2.05. Fees.
(a) The Borrower agrees to pay to the Administrative Agent for the account of each
Lender a commitment fee on the aggregate unused amount of such Lender's Commitment (i) from
the date hereof in the case of each Initial Lender and (ii) from the effective date specified in the
Assignment and Assumption pursuant to which it became a Lender in the case of each other
Lender, in each case, until the latest Termination Date applicable to such Lender, payable quarterly
in arrears on the last day of each March, June, September and December, commencing June 30,
2018, and ending on such Termination Date. The commitment fee for any period will be equal to
the Commitment Fee Rate in effect from time to time during such period, times an amount equal
to the Commitments minus the aggregate principal amount of Loans and Letters of Credit
outstanding during such period.
(b) The Borrower agrees to pay the fees payable by the Borrower in such amounts and
on such terms as set forth in the Fee Letters.
(c) The Borrower agrees to pay to the Administrative Agent for the account of each
Lender a fee (the *LC Fed')on the average daily aggregate principal amount of each such Lender's
Commitnent Percentage ofthe LC Outstandings (i) from the date hereof, in the case of each Initial
Lender, and (ii) from the effective date specified in the Assignment and Assumption pursuant to
which it became a Lender, in the case of each other L,ender, in each case until the later to occur of
(x) the Termination Date applicable to such Lender and (y) the date on which no Letters of Credit
are outstanding, payable quarterly in arrears on the last day of each March, June, September and
December (commencing on June 30, 2018), and on such later date, at a rate equal at all times to
the Applicable Margin in effect from time to time for Eurodollar Rate Revolving Loans'
(d) The Borrower agrees to pay to the Administrative Agent for the account of each
LC Issuing Bank, (i) a fee (the "LC Fronting Fee") equal to 0.20% of the stated amount of each
Letter of Credit issued by such LC Issuing Bank hereunder, payable quarterly in arears on the last
day of each March, June, September and December (commencing on June 30, 2018) and ending
onthe Termination Date or such later date on which no such letter of credit issued by such LC
Issuing Bank shall be outstanding, with the calculation based on the actual number of days elapsed
in a year of 360 days and (ii) customary issuance, maintenance, drawing and administration fees
in respect ofsuch letters ofcredit.
(e) The Borrower shall pay to the Administrative Agent, for its own account, the annual
administrative fee at the times and in the amount set forth in the Agent Fee Letter.
SECTION 2.06. Extension of the Termination Date.
(a) During the period from July 1, 2018 until the date that is 30 days prior to the then-
applicable Termination Date, the Borrower may request by written notice made to the
Aiministrative Agent (which shall promptly notify the Lenders thereof) one-year extensions of
the Termination Date applicable to each Lender. Each Lender shall notiff the Administrative
Agent by the date that is 30 days after the Administrative Agent provides the Lenders with written
,oti"" of the Borrower's extension request that either (A) such Lender declines to consent to
32
extending the Termination Date or (B) such Lender consents to extending the Termination Date.
Any Lender not responding within the above time period shall be deemed to have declined to
extend the Termination Date. The consent of a Lender to any such extension shall be in the sole
discretion of such Lender. The Administrative Agent shall, after receiving the notifications from
all of the Lenders or the expiration of such period, whichever is earlier, notifu the Borrower and
the Lenders of the results thereof. The Borrower may request no more than two extensions
pursuant to this Section.
(b) If any Lender declines, or is deemed to have declined, to consent to such request
for extension (each a "Declining Lendef'), the Borrower shall have the right to replace such
Declining Lender with an Eligible Assignee in accordance with Section 2.20(b). Any Lender
replacing a Declining Lender shall be deemed to have consented to such request for extension
(regardless of when such replacement is effective) and shall not be deemed to be a Declining
Lender.
(c) If the Required Lenders have consented to the extension of the Termination Date,
the Termination Date of each Lender that consented to the extension shall be extended to the date
that is one year after such Lender's then-effective Termination Date, effective as of the date to be
determined by the Administrative Agent and the Borrower (the "Ertension Effictive Date");
provided, that no such extension shall be effective prior to a date that would increase the remaining
tenor of any Loans or Commitments hereunder beyond 3 years and 2 months. On or prior to the
Extension Effective Date, the Borrower shall deliver to the Administrative Agent, in form and
substance reasonably satisfactory to the Administrative Agent (i) the resolutions of the Borrower
authorizing such extension and all Governmental Approvals (if any) required in connection with
such extension, certified as being in effect as of the Extension Effective Date and the related
incumbency certificate of the Borrower, (ii) a favorable opinion of counsel for the Borrower as to
such matters as any Lender through the Administrative Agent may reasonably request and (iii) a
certificate of the Borrower stating that on and as of such Extension Effective Date, and after giving
effect to the extension to be effective on such date, all conditions precedent to an Extension of
Credit under Section 3.02 are satisfied. On each Extension Effective Date, each Declining Lender
being replaced by the Borrower pursuant to Section 2.06(b) shall have received payment in full of
the principal amount of all Loans outstanding owing to such Declining Lender and all interest
thereon and all fees and other amounts (including, without limitation, any amounts payable
pursuant to Section 8.04(c)) payable to such Declining Lender accrued through such Extension
Effective Date. Promptly following such Extension Effective Date, the Administative Agent shall
distribute an amended Schedule I to this Agreement (which shall thereafter be incorporated into
this Agreement) to reflect any changes in the Lenders, the Commitments and each Lender's
Commitment Percentage as of such Extension Effective Date.
(d) Each LC Issuing Bank may, in its sole discretion, elect not to serve in such capacity
following any extension of the Termination Date; provided that (i) the Borrower and the
Administrative Agent may appoint a replacement for such resigning LC Issuing Bank, as the case
may be, and (ii) whether such replacement is appointed shall not otherwise affect the extension of
the Termination Date.
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SECTION 2.07. Increase of the Commitments.
(a) The Borrower may, from time to time, request by written notice to the
Administrative Agent to increase the Commitments by a maximum aggregate amount for all such
increases of up to $300,000,000, by designating one or more Lenders or other financial institutions
(that will become Lenders), in each case, meeting the requirements set forth in the definition of
Eligible Assignee, that agree to accept all or a portion of such additional Commitments (each a
"Designated Lendef').
(b) The Administrative Agent shall promptly notify the Designated Lenders of the
Borrower's request pursuant to subsection (a) above. Each Designated Lender shall notify the
Administrative Agent by the date specified by the Administrative Agent (which date shall be a
Business Day) that either (A) such Designated Lender declines to accept its additional
Commitments or (B) such Designated Lender consents to accept the offered Commifrnents. Any
Designated Lender not responding on or prior to the date specified by the Adminisffative Agent
shall be deemed to have declined to accept the offered Commitments. The Administrative Agent
shall, after receiving the notifications from all of the Designated Lenders or following the date
specified in the notice to such Designated Lenders, whichever is earlier, noti$ the Borrower and
the Lenders of the results thereof and the effective date of any additional Commitments. The
effectiveness of such additional Commitments shall be subject to the condition precedent that the
Borrower shall have delivered to the Administrative Agent (i) the resolutions of the Borrower
authorizing such additional Commitments and all Governmental Approvals (if any) required in
connection with such additional Commitments, certified as being in effect as of the effective date
of such additional Commitments, (ii) a favorable opinion of counsel for the Borrower as to such
matters as any Lender through the Administrative Agent may reasonably request and (iii) a
certificate signed by a duly authorized officer of the Borrower, dated as of the effective date of
such additional Commitments, stating that all conditions precedent to an Extension of Credit have
been satisfied on and as ofsuch effective date'
(c) Promptly following the effective date of any Commitment increase pursuant to this
Section 2.07, (i) the Administrative Agent shall distribute an amended Schedule I to this
Agreement (which shall thereafter be incorporated into this Agreement) to reflect any changes in
Lenders, the Commitments and each Lender's Commitment Percentage as of such effective date
and (ii) the Borrower shall prepay the outstanding Borrowings (if any) in full, and shall
simultaneously make new Borrowings hereunder in an amount equal to such prepayment, so that,
after giving effect thereto, the Borrowings are held ratably by the Lenders in accordance with their
respective Commitments (after givrng effect to such Commitrnent increase). Prepayments made
under this clause (c) shall not be subject to the notice requirements of Section 2.14.
(d) Notwithstanding any provision contained herein to the contrary, from and after the
date of any Commitment increase and the making of any Loans on such date pursuant to clause
(c)(ii) above, all calculations and payments of fees and of interest on the Loans shall take into
account the actual Commitment of each Lender and the principal amount outstanding of each Loan
made by such Lender during the relevant period of time.
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SECTION 2.08. Termination or Reduction of the Commitments.
(a) The Borrower shall have the right, upon at least three Business Days' notice to the
Administrative Agent, to terminate in whole or reduce ratably in part the Available Commitments,
provided that (i) each partial reduction shall be in the aggregate amount of $10,000,000 or an
integral multiple of $5,000,000 in excess thereof and (ii) no such termination or reduction shall be
made that would reduce the aggregate Commitments to an amount less than the Outstanding
Credits on the date of such termination or reduction. Subject to the foregoing, any reduction of
the Commitments to an amount below $300,000,000 shall also result in a reduction of the LC
Commitment Amount to the extent of such deficit (and if such reduction would cause the LC
Commitment Amount to be less than the aggregate Fronting Commitments, with automatic
reductions in the amount of each Fronting Commitment ratably in proportion to the amount of
such reduction of the LC Commitment Amount unless, in the case of any LC Issuing Bank, such
LC Issuing Bank consents otherwise). Each such notice of termination or reduction shall be
irrevocable; provided, however, that a notice of termination delivered pursuant to this Section 2.08
may state that such notice is conditioned upon the effectiveness of other credit facilities, in which
case such notice may be revoked by the Borrower (by notice to the Administative Agent on or
prior to the effective date specified in the notice of termination) if such condition is not satisfied.
(b) The Borrower may terminate the unused amount of the Commitment of any Lender
that is a Defaulting Lender upon not less than three Business Days' prior notice to the
Administrative Agent (which shall promptly notiS the Lenders thereof), and in such event the
provisions of Section 2.2I(a)(ii) will apply to all amounts thereafter paid by the Borrower for the
account of such Defaulting Lender under this Agreement (whether on account of principal, interest,
fees, indemnity or other amounts); provided that (i) no Event of Default shall have occurred and
be continuing, and (ii) such termination shall not be deemed to be a waiver or release of any claim
the Borrower, the Administrative Agent, any LC Issuing Bank or any Lender may have against
such Defaulting Lender.
(c) The Commitment of each Lender shall automatically terminate on the Termination
Date applicable to such Lender as provided in Section 2.06.
(d) Once terminated, a Commitment or any portion thereof may not be reinstated.
SECTION 2.09. Repayment of Loans.
(a) The Borrower shall repay to'the Administrative Agent for the account of each
Lender on the Termination Date applicable to such Lender the aggregate principal amount of the
Revolving Loans made to the Borrower by such Lender then outstanding. Without limiting the
foregoing, the Borrower shall also repay (to the Administrative Agent for the account of the
Lenders) Revolving Loans, in each ease, to the extent and at the time required pursuant to the terms
of any applicable Governmental Approval relating to the Borrower's ability to incur Debt.
(b) If at any time the aggregate principal amount of Outstanding Credits exceeds the
Commitments, the Borrower shall pay or prepay so much of the Borrowings and/or Cash
Collateralize the LC Outstandings as shall be necessary in order that the Outstanding Credits minus
35
the principal amount of Cash Collateral securing the LC Outstandings will not exceed the
Commitments.
SECTION 2.10. Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness to such Lender resulting from each Loan made by such
Lender from time to time, including the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement.
(b) The Administrative Agent shall maintain accounts in which it will record (i) the
amount of each Loan made hereunder, the Type of each Loan made and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable or to become due
and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received
by the Administrative Agent hereunder from the Borrower and each Lender's share thereof.
(c) The entries made in the accounts maintained pursuant to subsections (a) and (b) of
this Seciion 2.10 shall, to the extent permitted by Applicable Law, be prima facie evidence of the
existence and amounts of the obligations therein recorded; provided, however, that the failure of
any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in
*y m-6r affect the obligations of the Borrower to repay the Loans and interest thereon in
accordance with their terms.
(d) Any Lender may request that any Loans made by it be evidenced by one or more
promissory notes. [r such event, the Borrower shall prepare, execute and deliver to such Lender
or" o. -or. pro-issory notes payable to such Lender (or, if requested by such Lender, to such
Lender and its assignees) and in a form reasonably satisfactory to the Administrative Agent.
Thereafter, the Loans evidenced by such promissory notes and interest thereon shall at all times
(including after assignment pursuant to Section 8.07) be represented by one or more promissory
notes in such form payable to the payee named therein.
SECTION 2.17. Interest on Loans.
The Borrower shall pay interest on the unpaid principal amount of each Loan from the date
of such Loan until such principal amount shall be paid in full, at the following rates per annum:
(a) Base Rate Loans. During such periods as such Loan is a Base Rate Revolving
Loan, a rate per annum equal at all times to the sum of (x) the Base Rate plus (y) the Applicable
Margin for Base Rate Loans in effect from time to time, payable in a:rears quarterly on the last
day of each March, June, September and December during such periods and on the date such Base
Rate Loan shall be Converted or paid in full.
(b) Eurodollar Rate Revolving Loans. During such periods as such Revolving Loan
is a Eurodollar Rate Revolving Loan, a rate per annum equal at all times during each Interest Period
for such Revolving Loan to the sum of (x) the Eurodollar Rate for such Interest Period for such
Revolving Loan plus (y) the Applicable Margin for Eurodollar Rate Revolving Loans in effect
from time to time, payable in arrears on the last day of such lnterest Period and, if such Interest
Period has a duration of more than three months, on each day that occurs during such Interest
36
Period every three months from the first day of such Interest Period and on the date such Eurodollar
Rate Revolving Loan shall be Converted or paid in full.
(c) Additional Interest on Eurodollar Rate Revolving Loans. The Borrower shall pay
to each Lender, so long as such Lender shall be required under regulations of the Board of
Govemors of the Federal Reserve System to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurency Liabilities, additional interest on the unpaid principal
amount of each Eurodollar Rate Revolving Loan of such Lender, from the date of such Revolving
Loan until such principal amount is paid in full, at an interestrate per annum equal at all times to
the remainder obtained by subtracting (i) the Eurodollar Rate for the Interest Period for such
Revolving Loan from (ii) the rate obtained by dividing such Eurodollar Rate by a percentage equal
to 100% minus the Eurodollar Rate Reserve Percentage of such Lender for such Interest Period,
payable on each date on which interest is payable on such Revolving Loan. Such additional
interest shall be determined by such Lender and notified to the Borrower through the
Administrative Agent.
SECTION 2.12. Interest Rate Determination.
(a) The Administrative Agent shall give prompt notice to the Borrower and the Lenders
of the applicable interest rate determined by the Administrative Agent for purposes of Section
Z.LL(a) or (b), and, if applicable, the rate for the purpose of determining the applicable interest rate
under Section Z.ll(c).
(b) If, with respect to any Eurodollar Rate Revolving Loans, (i) the Required Lenders
notifythe Administrative Agent that the EurodollarRate for any Interest Period for such Revolving
Loans will not adequately reflect the cost to such Required Lenders of making, funding or
maintaining their respective Eurodollar Rate Revolving Loans for such lnterest Period, or (ii) the
Administrative Agent determines that adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the definition of Eurodollar Rate (including,
without limitation, because the Eurodollar Rate is not available or published on a current basis),
the Administrative Agent shall forthwith so notify the Borrower and the Lenders, whereupon (A)
each Eurodollar Rate Revolving Loan will automatically, on the last day of the then existing
lnterest Period therefor, Convert into a Base Rate Revolving Loan, and (B) the obligation of the
Lenders to make, or to Convert Revolving Loans into, Eurodollar Rate Revolving Loans shall be
suspended until the Administrative Agent shall notifu the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
(c) If at any time (i) the circumstances set forth in clause (bxii) above have arisen and
the Administrative Agent determines (which determination shall be conclusive absent manifest
error), or the Borrower notifies the Administrative Agent that the Borrower has determined, that
such circumstances are unlikely to be temporary, (ii) the circumstances set forth in clause (bxii)
above have not arisen but the supervisor for the administrator of the Eurodollar Rate or a
Govemmental Authority having jurisdiction over the Administrative Agent has made a public
statement identifying a specific date after which the Eurodollar Rate shall no longer be used for
determining interest rates for loans, or (iii) the Administrative Agent and the Borrower determine
that syndicated credit facilities currently being entered into or amended are incorporating or
adopting a new benchmark reference rate to replace the Eurodollar Rate, then the Administrative
37
Agent and the Borrower may amend this Agreement to establish an alternate benchmark reference
rate (including any mathematical or other adjustrnents to the benchmark (if any) incorporated
therein) that gives due consideration to the then prevailing market convention for determining a
benchmark reference rate for syndicated loans in the United States at such time (any such proposed
rate, a"Eurodollar Successor Rate"), and in connection therewith to incorporate any proposed
conforming changes to the definition of "Base Rate," "Interest Period," timing and frequency of
determining rates and making payments of interest and other administrative matters as may be
appropriate, as agreedbetweenthe Administrative Agent and the Borrower, to reflect the adoption
of such Eurodollar Successor Rate and to permit the administration thereof by the Administrative
Agent in a manner substantially consistent with market practice (or, if the Administrative Agent
determines that adoption of any portion of such market practice is not administratively feasible or
that no market practice for the administration of such Eurodollar Successor Rate yet exists, in such
other manner of administation as the Administrative Agent determines with the consent of the
Borrower). Not'withstanding anything to the contrary in Section 8.01, such amendment shall
become effective without any further action or consent of any other party to this Agreement so
long as the Administative Agent shall not have received, within five (5) Business Days of the date
notice of such Eurodollar Successor Rate is provided to the Lenders, a written notice from the
Required Lenders stating that such Required Lenders object to such amendment, provided that any
such objection shall be reasonable and made in good faith. [n the case of the circumstances
described in subclause (i) or (ii) ofthe first sentence of this clause (c), until an Eurodollar Successor
Rate shall be determined in accordance with this clause (c) (but, in the case of the circumstances
described in such subclause (ii), only to the extent the Eurodollar Rate for such Interest Period is
not available or published at such time on a current basis), (x) any notice from the Borrower that
requests the Conversion of any Borrowing to, or continuation of any Borrowing as, a Borrowing
consisting of Eurodollar Rate Revolving Loans shall be ineffective and (y) if any Notice of
Borrowing requests a Borrowing consisting of Eurodollar Rate Revolving Loans, such Borrowing
shall be made a Borrowing consisting of Base Rate Loans; provided that, if such Eurodollar
Successor Rate shall be less thanzero, such rate shall be deemed to be zero for the purposes of this
Agreement.
SECTION 2.13. Conversion of Revolving Loans.
(a) Voluntary. The Borrower may on any Business Day, upon notice given to the
Administrative Agent not later than l2:00 noon (New York City Time) on the third Business Day
prior to the date of the proposed Conversion and subject to the provisions of Sections 2.12 and
2.I6,Convert all or anypart of Revolving Loans of one Type comprising the same Borrowing into
Revolving Loans of the other Type or of the same Type but having a new Interest Peiod; provided,
however, that any Conversion of Eurodollar Rate Revolving Loans into Base Rate Revolving
Loans shall be made only on the last day of an Interest Period for such Eurodollar Rate Revolving
Loans, any Conversion of Base Rate Revolving Loans into Eurodollar Rate Revolving Loans shall
be in an amount not less than the minimum amount specified in Section 2.02b) and no Conversion
of any Revolving L,oans shall result in more separate Borrowings than permitted under Section
2.02(b). Each such notice of a Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion, (ii) the Revolving Loans to be Converted, and (iii) if such
Conversion is into Eurodollar Rate Revolving Loans, the duration of the initial Interest Period for
each such Revolving Loan. Each notice of Conversion shall be irrevocable and binding on the
Borrower.
38
(b) Mandatory.
(i) If the Borrower shall fail to select the Type of any Revolving Ioan or the
duration of any Interest Period for any Borrowing comprising Eurodollar Rate Revolving
Loans in accordance with the provisions contained in the definition of "lnterest Period" in
Section 1.01 and Section 2.13(a), or if any proposed Conversion of a Borrowing that is to
comprise Eurodollar Rate Revolving Loans upon Conversion shall not occur as a result of
the circumstances described in subsection (c) below, or if an Event of Default has occurred
and is continuing and Eurodollar Rate Revolving Loans are outstanding, the Administrative
Agent will forthwith so notifu the Borrower and the Lenders, and (i) such Revolving Loans
will automatically, on the last day of the then existing Interest Period therefor, Convert into
Base Rate Loans and (ii) the obligation of the Lenders to make, or to Convert Revolving
Loans into, Eurodollar Rate Revolving Loans shall be suspended.
(ii) On the date on which the aggregate unpaid principal amount of Eurodollar
Rate Revolving Loans comprising any Borrowing shall be reduced, by payment or
prepayment or otherwise, to less than $10,000,000, such Revolving Loans shall
automatically Convert into Base Rate Revolving Loans.
(c) Failure to Converl Each notice of Conversion given pursuant to subsection (a)
above shall be irrevocable and binding on the Borrower. In the case of any Borrowing that is to
comprise Eurodollar Rate Revolving l,oans upon Conversion, the Borrower agrees to indemni$
each Lender against any loss, cost or expense incurred by such Lender if as a result ofthe failure
of the Borrower to satis$ any condition to such Conversion (including, without limitation, the
occurrence of any Default), such Conversion does not occur. The Borrower's obligations under
this subsection (c) shall survive the repayment of all other amounts owing to the Lenders and the
Administrative Agent under this Agreement and the termination of the Commitrnents.
(d) Limitation on Certain Conversions. Notvrithstanding any other provision of this
Agreement to the contrary, the Borrower may not borrow Revolving Loans at the Eurodollar Rate
or Convert Revolving Loans resulting in Eurodollar Rate Revolving Loans at any time an Event
of Default has occurred and is continuing.
SECTION 2.14. Optional Prepayruents of Loans.
The Borrower may prepay Loans, (i) upon at least two Business Days' notice, in the case
of Eurodollar Rate Revolving Loans, and (ii) upon notice not later than 12:00 noon (New York
City Time) on the date of prepayment, in the case of Base Rate Revolving Loans, to the
Administrative Agent stating the proposed date and aggregate principal amount of the prepayrnent,
and, if such notice is given, the Borrower shall prepay the outstanding principal amount of the
Loans comprising part of the same Borrowing in whole or ratably in part, without penalty, together
with accrued interest to the date of such prepayment on the principal amount prepaid; provided,
however, that (x) each partial prepayment shall be in an aggregate principal amount of $ I ,000,000
or an integral multiple of $ 100,000 in excess thereof and (y) in the event of any such prepayment
of a Eurodollar Rate Loan, the Borrower shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 8.04(c).
39
SECTION 2.15. Increased Costs.
(a) Increased Costs Generally. lf any Change in Law shall:
(i) impose, modify or deem applicable any reserve, assessment, special
deposit, compulsory loan, insurance charge or similar requirement against assets of,
deposits with or for the account of, or credit extended or participated in by, any Lender
(except any reserve requirement reflected in the Eurodollar Rate Reserve Percentage) or
any LC Issuing Bank;
(ii) other than (A) Indemnified Taxes and (B) Excluded Taxes, subject any
Recipient to any Taxes on, or change the basis of taxation of payments to any Recipient in
respect of, its loans, loan principal, letters of credit, commitments, or other obligations, or
its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or any LC Issuing Bank or the london interbank
market any other condition, cost or expense (other than Taxes) affecting this Agreement or
Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender or such other
Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its
obligation to make any such Loan, or to increase the cost to such Lender, such LC Issuing Bank
or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount
of any sum received or receivable by such Lender, LC Issuing Bank or other Recipient hereunder
(whether of principal, interest or any other amount) then, upon the good faith request of such
Lender, LC Issuing Bank or other Recipient, the Borrower will pay to such Lender, LC Issuing
Bank or other Recipient, as the case may be, such additional amount or amounts as will compensate
such Lender, LC Issuing Bank or other Recipient, as the case may be, for such additional costs
incurred or reduction suffered.
(b) Capital Requirements. If any Lender or LC Issuing Bank determines that any
Change in Law affecting such Lender or LC Issuing Bank or any lending offrce of such Lender or
such Lender's or LC Issuing Bank's holding company, if any, regarding capital or liquidity
requirements, has or would have the effect of reducing the rate of return on such Lender's or LC
Issuing Bank's capital or on the capital of such Lender's or LC Issuing Bank's holding company,
if any, as a consequence of this Agreement, the Commitnents of such Lender or the Loans made
by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by
any LC Issuing Bank, to a level below that which such Lender or LC Issuing Bank or such Lender's
or LC [ssuing Bank's holding company could have achieved but for such Change in Law (taking
into consideration such Lender's or LC lssuing Bank's policies and the policies of such Lender's
or LC Issuing Bank's holding company with respect to capital adequacy and liquidity), then from
time to time the Borrower will pay to such Lender or LC Issuing Bank, as the case may be, such
additionat amount or amounts as will compensate such Lender or LC Issuing Bank or such
Lender's or LC Issuing Bank's holding company for any such reduction suffered.
40
(c) Certificates for Reimbursement A certificate of a Lender or LC Issuing Bank
setting forth the amount or amounts necessary to compensate such Lender or LC Issuing Bank or
its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and
delivered to the Borrower, shall be conclusive absent manifest error. The Borrower shall pay such
Lender or LC Issuing Bank, as the case may be, promptly upon demand the amount shown as due
on any such certificate.
(d) Delay in Requests. Failure or delay on the part of any Lender or LC Issuing Bank
to demand compensation pursuant to this Section shall not constitute a waiver of such Lender's or
LC Issuing Bank's right to demand such compensation; provided that the Borrower shall not be
required to compensate a Lender or LC Issuing Bank pursuant to this Section for any increased
costs incurred or reductions suffered more than 180 days prior to the date that such Lender or LC
Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions, and of such Lender's or LC Issuing Bank's intention to claim
compensation therefor (except that, if the Change in Law giving rise to such increased costs or
reductions is refoactive, then the 180-day period referred to above shall be extended to include
the period ofretroactive effect thereof).
SECTION 2.16. Illegality.
If due to any Change in Law it shall become unlawful or impossible for any Lender (or its
Eurodollar Lending Office) to make, maintain or fund its Eurodollar Rate Revolving Loans, and
such Lender shall so notifu the Administrative Agent, the Administrative Agent shall forthwith
give notice thereof to the other Lenders and the Borrower, whereupon, until such Lender notifies
the Borrower and the Administrative Agent that the circumstances giving rise to such suspension
no longer exist, the obligation of such Lender to make Eurodollar Rate Revolving Loans, or to
Convert outstanding Revolving l,oans into Eurodollar Rate Revolving Loans, shall be suspended.
Before giving any notice to the Administrative Agent pursuant to this Section 2.16, such Lender
shall use reasonable efforts (consistent with its intemal policy and legal and regulatory restrictions
applicable to such Lender) to designate a different Eurodollar Lending Office if such designation
would avoid the need for giving such notice and would not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender. If such notice is given, each Eurodollar Rate
Revolving Loan of such Lender then outstanding shall be converted to a Base Rate Revolving
Loan either (i) on the last day of the then current lnterest Period applicable to such Eurodollar Rate
Revolving Loan if such Lender may lawfully continue to maintain and fund such Revolving Loan
to such day or (ii) immediately if such Lender shall determine that it may not lawfully continue to
maintain and fund such Revolving Loan to such day.
SECTION 2.17. Payments and Computations.
(a) The Borrower shall make each payment to be made by it hereunder not later than
1:00 P.M. (New York City Time) on the day when due in Dollars to the Administrative Agent at
the Agent's Account in same day funds without condition or deduction for any counterclaim,
defense, recoupment or setoff. The Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest or commitment fees ratably
(other than amounts payable pursuant to Section 2.02(c),2.06,2.1.1(c), 2.13(c),2.15,2.I8,2.21 or
8.0a(c)) to the Lenders for the account of their respective Applicable Lending Offices, and like
4l
funds relating to the payment of any other amount payable to any Lender to such Lender for the
account of its Applicable Lending Office, in each case to be applied in accordance with the terms
of this Agreement. Upon its acceptance of an Assignment and Assumption and recording of the
information contained therein in the Register pursuant to Section 8.07(c), from and after the
effective date specified in such Assignment and Assumption, the Administrative Agent shall make
all payments hereunder in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Assumption shall make all appropriate
adjustments in such payments for periods prior to such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the extent payment owed to
such Lender is not made when due hereundeq after any applicable grace period, to charge from
time to time against any or all of the Borrower's accounts with such Lender any amount so due'
(c) All computations of interest based on the rate referred to in clause (i) of the
definition of the "Base Rate" contained in Section 1.01 shall be made by the Administrative Agent
on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based
on the Eurodollar Rate, the Federal Funds Effective Rate, NYFRB Rate or the rate referred to in
clause (iii) of the definition of the'oBase Rate" and of commitment fees and LC Fees shall be made
by the Administrative Agent on the basis of a year of 360 days, in each case for the actual number
of days (including the first day but excluding the last day) occurring in the period for which such
interest, commitment fees or LC Fees are payable. Each determination by the Adminisffative
Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(d) Whenever any payment hereunder shall be stated to be due on a day other than a
Business Day, such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment of interest or
commitment fees, as the case may be; provided, however, that, if such extension would cause
payment of interest on or principal of Eurodollar Rate Revolving Loans to be made in the next
following calendar month or on a date after the Termination Date, such payment shall be made on
the next preceding Business Day.
(e) Unless the Administative Agent shall have received notice from the Borrower prior
to the date on which any payment is due to a Lender hereunder that the Borrower will not make
such payment in full, the Administrative Agent may assume that the Borrower has made such
payment in full to the Administrative Agent on such date, and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such due date an amount
equal to the amount then due such Lender. If and to the extent that the Borrower shall not have so
made such payment in full to the Administrative Agent, each Lender shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such Lender until the date
such Lender repays such amount to the Administrative Agent, at the Federal Funds Effective Rate.
(D Notwithstanding anything to the contrary set forth in subsection (a) above or
Section 2.04(d), the Borrower may pay, or cause to be paid pursuant to the applicable Related
Documents, the Reimbursement Amount with respect to any drawing under a Bond Leffer of Credit
directly to the LC Issuing Bank that issued such Bond Letter of Credit. Upon receipt of any such
42
payment, such LC Issuing Bank will promptly (i) (A) apply such payment to that portion of such
Reimbursement Amount participations in which have not been funded by the Lenders under
Section 2.0a@) and (B) remit the balance of such payment to the Administrative Agent for further
payment to the Lenders that have funded participations in such Reimbursement Amount pursuant
to Section 2.04(e), or (ii) if such Reimbursement Amount has been financed with Borrowings,
remit such payment to the Administrative Agent, which will apply such payment to the prepayment
of Borrowings in a principal amount equal to the principal amount of such Reimbursement Amount
so financed. The Administrative Agent shall select the Borrowings to be prepaid pursuant to clause
(ii) above in a manner that will mitigate, to the extent practical, the Borrower's obligations under
Section 8.0a(c) with respect to such prepayment.
SECTION 2.18. Taxes.
(a) Deftned Terms. For purposes of this Section 2.18 and for the avoidance of doubt,
the term o'Lender" includes anyLC Issuing Bank and the term "Applicable Law" includes FATCA.
(b) Payments Free of Taxes. Any and all payments by or on account of any obligation
of the Borrower under any Loan Document shall be made without deduction or withholding for
any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the
good faith discretion of an applicable Withholding Agent) requires the deduction or withholding
of any Tax from any such payment by a Withholding Agent, then the applicable Withholding
Agent shall be entitled to make such deduction or withholding and shall timelypay the full amount
deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law
and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower shall be increased
as necessary so that after such deduction orwithholding has been made (including such deductions
and withholdings applicable to additional sums payable under this Section) the applicable
Recipient receives an amount equal to the sum it would have received had no such deduction or
withholding been made.
(c) Payment of Other Taxes by the Bowower. The Borrower shall timely pay to the
relevant Governmental Authority in accordance with Applicable Law, or at the option of the
Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(d) Indemnification by the Boruower, The Borrower shall indemnifu each Recipient,
within 30 days after demand therefor, for the full amount of any Indemnified Taxes (including
Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section)
payable or paid by such Recipient or required to be withheld or deducted from a payment to such
Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes were corectly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability delivered to
the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative
Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(e) Indemnffication by the Lenders, Each Lender shall severally indemnify the
Administrative Agent, within 30 days after demand therefor, for any Indemnified Taxes
attributable to such Lender (but only to the extent that the Borrower has not already indemnified
the Administrative Agent for such lndemnified Taxes and without limiting the obligation of the
43
Borrower to do so). Each Lender shall severally indemnify the Administrative Agent and the
Borrower, within 30 days after demand therefor, for (i) any Taxes attributable to such Lender's
failure to comply with the provisions of Section S.07(d) relating to the maintenance of a Participant
Register and (ii) any Excluded Taxes attributable to such Lender, in each case, that are payable or
paid by the Administrative Agent or the Borrower in connection with any loan Document, and
any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were
correctly or legally imposed or asserted by the relevant Govemmental Authority. A certificate as
to the amount of such payment or liability delivered to any Lender by the Administrative Agent or
the Borrower shall be conclusive absent manifest error. Each Lender hereby authorizes the
Administrative Agent or the Borrower to set offand apply any and all amounts at any time owing
to such Lender under any Loan Document or otherwise payable by the Administrative Agent or
the Borrower to the Lender from any other source against any amount due to the Administrative
Agent or the Borrower under this subsection (e).
(0 Evidence of Payments. As soon as practicable after any payment of Taxes by the
Borrower to a Governmental Authority pursuant to this Section 2.18, the Borrower shall deliver to
the Administrative Agent the original or a certified copy of a receipt issued by such Govemmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence
of such payment reasonably satisfactory to the Administrative Agent'
(g) Status of Lenders. (i) AnV Lender that is entitled to an exemption from or reduction
of withholding Tax with respect to payments made under any Loan Document shall deliver to the
Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower
or the Administrative Agent, such properly completed and executed documentation reasonably
requested by the Borrower or the Administrative Agent as will permit such payments to be made
without withholding or at a reduced rate of withholding. ln additiotr, ffiY Lender, if reasonably
requested by the Borrower or the Administrative Agent, shall deliver such other documentation
prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative
Agent as will enable the Borrower or the Administrative Agent to determine whether or not such
Lender is subject to backup withholding or information reporting requirements. Notwithstanding
anything to the contrary in the preceding two sentences, the completion, execution and submission
of such documentation (other than such documentation set forth in Section 2.18(gxii)(A), (iiXB)
and (ii)(D) below) shall not be required if in the Lender's reasonable judgment such completion,
execution or submission would subject such Lender to any material unreimbursed cost or expense
or would materially prejudice the legal or coilrmercial position of such Lender.
(ii) Without limiting the generality of the foregoing,
(A) any Lender that is a U.S. Person shall deliver to the Borrower and the
Administrative Agent on or prior to the date on which such Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), an executed IRS Form W-9 certifying that such Lender is exempt from
U.S. federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver
to the Borrower and the Administrative Agent (in such number of copies as shall be requested by
the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this
44
Agreement (and from time to time thereafter upon the reasonable request of the Borower or the
Administrative Agent), whichever of the following is applicable:
(i) in the case of a Foreign Lender claiming the benefits of an income
tax treaty to which the United States is a party (x) with respect to payments of
interest under any Loan Document, an executed IRS Form W-8BEN-E or IRS Form
W-8BEN establishing an exemption from, orreduction of, U.S. federal withholding
Tax pursuant to the 'ointerest" article of such tax treaty and (y) with respect to any
other applicable payments under any Loan Document, an executed IRS Form W-
8BEN-E or IRS Form w-8BEN establishing an exemption from, or reduction of,
U.S. federal withholding Tax pursuant to the "business profits" orooother income"
article of such taxtreaty;
(ii) an executed IRS Form W-8ECI;
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under Section 881(c) of the lrternal Revenue Code,
(x) a certificate substantially in the form of Exhibit F-l to the effect that such
Foreign Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the
Internal Revenue code, a "10 percent shareholder" of the Borrower within the
meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a "controlled
foreign corporation" described in section 881(c)(3)(c) of the Internal Revenue
Code (a "U.5, Tax Compliance Certiftcate") and (y) an executed IRS Form W-
SBEN-E or IRS Form W-8BEN; or
(iv) to the extent a Foreign Lender is not the beneficial owner, an
executed IRS Form W-8IMY, accompanied by an executed IRS Form W-8ECI,
IRS Form W-8BEN-E or IRS Form w-8BEN, a U.S. Tax compliance Certificate
substantially in the form of Exhibit F-2 or Exhibit F-3, IRS Form w-9, and/or other
certification documents from each beneficial owner, as applicable; provided that if
the Foreign Lender is a partnership and one or more direct or indirect partners of
such Foreign Lender are claiming the portfolio interest exemption, such Foreign
Lender mayprovide a U.S. Tax Compliance Certificate substantially in the form of
Exhibit F-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver
to the Borrower and the Administrative Agent (in such number of copies as shall be requested by
the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), executed originals of any other form prescribed by Applicable Law as a
basis for claiming exemption from or a reduction in withholding Tax, duly completed, together
with such supplementary documentation as may be prescribed by Applicable Law to permit the
Borrower or the Administrative Agent to determine the withholding or deduction required to be
made; and
45
(D) if a payment made to a Lender under any Loan Document would be subject
to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with
the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or
1472(b) of the lnternal Revenue Code, as applicable), such Lender shall deliver to the Borrower
and the Administrative Agent at the time or times prescribed by law and at such time or times
reasonably requested by the Borrower or the Administrative Agent such documentation prescribed
by Applicable Law (including as prescribed by Section 1a71@)(3)(CX1) of the Lrtemal Revenue
Code) and such additional documentation reasonably requested by the Borrower or the
Administrative Agent as may be necessary for the Borrower and the Administrative Agent to
comply with their obligations under FATCA and to determine that such Lender has complied with
such Lender's obligations under FATCA or to determine the amount to deduct and withhold from
such payment. Solely for purposes of this clause (D), "FATCA" shall include any amendments
made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires or
becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly
noti$ the Borrower and the Administrative Agent in writing of its legal inability to do so.
(h) Treatment of Certain Refunds. If any party determines, in its sole discretion
exercised in good faith, that it has received a refund of any Taxes as to which it has been
indemnified pursuant to this Section 2.18 (including by the payment of additional amounts
pursuant to this Section 2.1 8), it shall pay to the indemnifying party an amount equal to such refund
(but only to the extent of indemnity payments made under this Section with respect to the Taxes
giving rise to such refund), net of all reasonable out-of-pocket expenses (including Taxes) of such
indemnified party and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund). Such indemnifying party, upon the request of such
indemnified party, shall repay to such indemnified party the amount paid over pursuant to this
subsection (h) (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) in the event that such indemnified party is required to repay such refund to such
Govemmental Authority. Notwithstanding anything to the contrary in this subsection (h), in no
event will the indemnified party be required to pay any amount to an indemniffing party pursuant
to this subsection (h) the payment of which would place the indemnified party in a less favorable
net after-Tax position than the indemnified party would have been in if the Tax subject to
indemnification and giving rise to such refund had not been deducted, withheld or otherwise
imposed and the indemnification payments or additional amounts with respect to such Tax had
never been paid. This subsection shall not be construed to require any indemnified party to make
available its Tax returns (or any other information relating to its Taxes that it deems confidential)
to the indemni$ring party or any other Person.
(i) Survival Each party's obligations under this Section 2.18 shall survive the
resignation or replacement of the Administrative Agent or any assignment of rights by, or the
replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or
discharge of all obligations under any Loan Document.
46
SECTION 2.19. Sharing of Payments, Etc.
If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of any principal of or interest on any of its Loans or other obligations hereunder
resulting in such Lender receiving payment of a proportion of the aggregate amount of its Loans
and accrued interest thereon or other such obligations greater than its Commitment Percentage
thereof as provided herein, then the Lender receiving such greater proportion shall (i) notifu the
Administrative Agent of such fact, and (ii) purchase (for cash at face value) participations in the
Loans and such other obligations of the other Lenders, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on their respective
Loans and other amounts owing them; provided that:
(A) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest; and
(B) the provisions of this Section shall not be construed to apply to (x) any
payment made by the Borrower pursuant to and in accordance with the express terms of
this Agreement (including the application of funds arising from the existence of a
Defaulting Lender and any payment made pursuant to Section 2.02(c), 2.06,2.11(c),
2.13(c), 2.15, 2.I8, 2.21 or 8.04(c) or, in respect of Eurodollar Rate Revolving Loans
converted into Base Rate Revolving Loans, pursuant to Section 2.16), or (y) any payment
obtained by a Lender as consideration for the assignment of or sale of a participation in
any of its Loans or participations in LC Outstandings to any assignee or participant, other
than to the Borrower or any Subsidiary thereof (as to which the provisions of this Section
shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under
Applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against the Borrower rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such
participation.
SECTION 2.20. Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 2.15, or if the Borrower is required to pay any Indemnified Taxes or additional
amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.18, then such Lender shall (at the request of the Borrower) use reasonable efforts to
designate a different Applicable Lending Offrce for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the
judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.15 or 2.18, as the case may be, in the future, and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or assignment.
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O) Replacement of Lenders, If any Lender requests compensation under Section 2.15,
or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section 2.18 and, in
each case, such Lender has declined or is unable to designate a different Applicable Lending Office
in accordance with subsection (a) above, or if any Lender is a Declining Lender, a Defaulting
Lender or a Non-Consenting Lender, then the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained in, and consents
required by, Section 8.07), all of its interests, rights (other than its existing rights to payments
pursuant to Section 2.15 or Section 2.18) and obligations under this Agreement and the related
Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may
be another Lender, if such Lender accepts such assignment); provided that:
(i) the Borrower shall have paid to the Administrative Agent the assignment
fee (if any) specified in Section 8.07(bXiv);
(ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its loans and any participations in Letters of Credit funded
pursuant to Section 2.04(e), together with all applicable accrued interest thereon, accrued
fees and all other amounts payable to it hereunder and under the other Loan Documents
(inctuding any amounts under Section 8.0a(c)) from the assignee (to the extent of such
outstanding principal amounts and accrued interest and fees) or the Borrower (in the case
of all other amounts);
(iii) in the case of any such assignment resulting from a claim for compensation
under Section2.l5 or payments required to be made pursuant to Section2.l8, such
assignment will result in a reduction in such compensation or payments thereafter;
(iv) such assignment shall not conflict with Applicable Law;
(v) in the case of any assignment resulting from a Lender becoming a Declining
Lender or a Non-Consenting Lender, the applicable assignee shall have consented to the
applicable extension, amendment, waiver or consent; and
(vi) No Default shall have occurred and be continuing.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
SECTION 2.21. Defaulting Lenders.
(a) Defoutting Lender Adjustments. Notwithstanding anything to the contrary
contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as
such Lender is no longer a Defaulting Lender, to the extent permitted by Applicable Law:
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(i) Waivers and Amendmezfs. Such Defaulting Lender's right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in the definition of Required Lenders and in Section 8.01.
(ii) Defaulting Lender Waterfoll Any payment of principal, interest, fees or
other amounts received by the Administative Agent for the account of such Defaulting
Lender (whether voluntary or mandatory, at maturity, pursuant to Article 6.01 or otherwise)
or received by the Administrative Agent from a Defaulting Lender pursuant to Section 8.05
shall be applied at such time or times as may be determined by the Administrative Agent
as follows:/rst, to the payment of any amounts owing by such Defaulting Lender to the
Administrative Agent hereunder; second,to the payment on a pro rata basis of any amounts
owing by such Defaulting Lender to any LC Issuing Bank hereunder; third, to Cash
Collateralize the LC Issuing Banks' Fronting Exposure with respect to such Defaulting
Lender in accordance with Section 2.22; fourth, as the Borrower may request (so long as
no Default exists), to the funding of any Loan in respect of which such Defaulting Lender
has failed to fund its portion thereof as required by this Agreement, as determined by the
Administrative Agent; Jifth, if so determined by the Administrative Agent and the
Borrower, to be held in a deposit account and released pro rata in order (x) to satisfy such
Defaulting Lender's potential future funding obligations with respect to Loans under this
Agreement and (y) to Cash Collateralize the LC Issuing Banks' future Fronting Exposure
with respect to such Defaulting Lender with respect to future Leffers of Credit issued under
this Agreement, in accordance with Section 2.22; sixth, to the payment of any amounts
owing to the Lenders or the LC Issuing Banks as a result of any judgment of a court of
competent jurisdiction obtained by any Lender or the LC Issuing Banks against such
Defaulting Lender as a result of such Defaulting Lender's breach of its obligations under
this Agreement; seventh, so long as no Default exists, to the payment of any amounts owing
to the Borrower as a result of any judgment of a court of competent jurisdiction obtained
by the Borrower against such Defaulting Lender as a result of such Defaulting Lender's
breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or
as otherwise directed by a court of competent jurisdiction; provided that if (x) such
payment is a payment of the principal amount of any Loans or LC Outstandings in respect
of which such Defaulting Lender has not fully funded its appropriate share, and (y) such
Loans were made or the related Letters of Credit were issued at a time when the conditions
set forth in Section 3.02 were satisfied or waived, such payment shall be applied solely to
pay the Loans of, and LC Outstandings owed to, all Non-Defaulting Lenders on a pro rata
basis prior to being applied to the payment of any Loans of, or LC Outstandings owed to,
such Defaulting Lender until such time as all Loans and funded and unfunded participations
in LC Outstandings are held by the Lenders pro rata in accordance with the Commitments
without giving effect to Section 2.21(a)(iv). Any payments, prepayments or other amounts
paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by
a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.21(a)(ii) shall be
deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably
consents hereto.
(ii| Certain Fees, (A) No Defaulting Lender shall be entitled to receive any
commitment fee for any period during which that Lender is a Defaulting Lender (and the
49
Borrower shall not be required to pay any such fee that otherwise would have been required
to have been paid to that Defaulting Lender).
(B) Each Defaulting Lender shall be entitled to receive LC Fees for any
period during which that Lender is a Defaulting Lender only to the extent allocable
to its Commitrnent Percentage of the LC Outstandings for which it has provided
Cash Collateral pursuant to Section 2.22.
(C) With respect to any LC Fee not required to be paid to any Defaulting
Lender pursuant to clause (B) above, the Borrower shall (x) pay to each Non-
Defaulting Lender that portion of any such LC Fee otherwise payable to such
Defaulting Lender with respect to such Defaulting Lender's participation in LC
Outstandings that has been reallocated to such Non-Defaulting Lender pursuant to
clause (iv) below, (y) pay to each LC Issuing Bank, as applicable, the amount of
any such LC Fee otherwise payable to such Defaulting Lender to the extent
allocable to such LC Issuing Bank's Fronting Exposure to such Defaulting Lender,
and (z) not be required to pay the remaining amount of any such LC Fee.
(iv) Reallocation of Participations to Reduce Fronting Exposure. All or any
part of such Defaulting Lender's participation in LC Outstandings shall be reallocated
among the Non-Defaulting Lenders in accordance with their respective Commitment
Percentages (calculated without regard to such Defaulting Lender's Commitment) but only
to the extent that (x) such reallocation does not cause the aggregate Outstanding Credits of
any Non-Defaulting Lender to exceed such Non-Defaulting Lender's Commitment and (y)
such reallocation does not cause the aggregate Outstanding Credits of all Non-Defaulting
Lenders to exceed the Commitments of all Non-Defaulting Lenders. Subject to Section
8.16, no reallocation hereunder shall constitute a waiver or release of any claim of any
party hereunder against a Defaulting Lender arising from that Lender having become a
Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such
Non-Defaulting Lender's increased exposure following such reallocation.
(v) Reduction of Available Commitmenfs. The Borrower may terminate the
Available Commitnent of any Lender that is a Defaulting Lender in accordance with
Section 2.08(b).
(b) Defoulting Lender Cure. lf the Borrower, the Administrative Agent and each LC
Issuing Bank agree in writing that a Lender is no longer a Defaulting Lender, the Administrative
Agent will so notifr the parties hereto, whereupon as of the effective date specified in such notice
and subject to any conditions set forth therein (which may include arrangements with respect to
any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of
outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may
determine to be necessary to cause the Loans and funded and unfunded participations in LC
Outstandings to be held pro rata by the Lenders in accordance with the Commitments (without
giving effect to Section 2.21(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender;
provided that no adjustments will be made retroactively with respect to fees accrued or payments
made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided,
further, that except to the extent otherwise expressly agreed in writing by the affected parties, no
50
change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any
claim of any party hereunder arising from that Lender's having been a Defaulting Lender.
(c) New Letters of Credit So long as any Lender is a Defaulting Lender, no LC Issuing
Bank shall be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied
that it will have no Fronting Exposure after giving effect thereto.
(d) Bankruptcy Event or Bail-In Action of a Parent Company. If (i) a Bankruptcy
Event or Bail-In Action with respect to a direct or indirect parent company of any Lender shall
occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuing
Bank has a good faith belief that any Lender has defaulted in fulfilling its obligations under one or
more other agreements in which such Lender commits to extend credit, no LC Issuing Bank shall
be required to issue, extend, renew or increase any Letter of Credit, unless such LC Issuing Bank
shall have entered into arrangements with the Borrower or such Lender, satisfactory to such LC
Issuing Bank to defease any risk to it in respect of such Lender hereunder.
SECTION 2,22. Cash Collateral
At any time that there shall exist a Defaulting Lender, within one Business Day following
the wriffen request of the Administrative Agent or any LC Issuing Bank (with a copy to the
Administrative Agent) the Borrower shall Cash Collateralize the LC Issuing Banks' Fronting
Exposure with respect to such Defaulting Lender (determined after giving effect to Section
2.21(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less
than the Minimum Collateral Amount.
(i) Grant of Security Interest. The Borrower, and to the extent provided by
any Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent,
for the benefit of the LC Issuing Banks, and agrees to maintain, a first priority security
interest in all such Cash Collateral as security for the Defaulting Lenders' obligation to
fund participations in respect of LC Outstandings, to be applied pursuant to paragraph (ii)
below. If at any time the Administrative Agent determines that Cash Collateral is subject
to any right or claim of any Person other than the Administrative Agent and the LC Issuing
Banks as herein provided, or that the total amount of such Cash Collateral is less than the
Minimum Collateral Amount, the Borrower will, promptly upon demand by the
Administrative Agent, pay or provide to the Administrative Agent additional Cash
Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any
Cash Collateral provided by the Defaulting Lender).
(ii) Application Notwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under this Section 2.22 or Section 2.21 inrespect of
Letters of Credit shall be applied to the satisfaction of the Defaulting Lender's obligation
to fund participations in respect of LC Outstandings (including, as to Cash Collateral
provided by a Defaulting Lender, any interest accrued on such obligation) for which the
Cash Collateral was so provided, prior to any other application of such property as may
otherwise be provided for herein.
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(iii) Termination of Requirement Cash Collateral (or the appropriate portion
thereof) provided to reduce any LC Issuing Bank's Fronting Exposure shall no longer be
required-to be held as Cash Collateral pursuant to this Section 2.22 following (A) the
elimination of the applicable Fronting Exposure (including by the termination of
Defaulting Lender status of the applicable Lender), or (B) the determination by the
Administrative Agent and each LC Issuing Bank that there exists excess Cash Collateral;
provided that, subject to Section 2.21, the Person providing Cash Collateral and each LC
issuing Bank may agree that Cash Collateral shall be held to support future anticipated
Fronting Exposure or other obligations.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01. Conditions Precedent to Effictiveness.
The obligation of each Lender and each LC Issuing Bank to make the initial Extension of
Credit to be made by it hereunder shall become effective on and as of the first date on which the
following conditions precedent have been satisfied:
(a) The Administrative Agent shall have received on or before such date of
effectiveness the following, each dated such day (except as noted otherwise below), in form and
substance reasonably satisfactory to the Administrative Agent and, to the extent requested by the
Administrative Agent, in sufficient copies (except with respect to the promissory notes described
in paragraph (ii) below) for each Lender and each LC Issuing Bank:
(i) A fully executed version of this Agreement and the other Loan Documents;
(ii) Promissory notes payable to each Lender that has requested the same prior
to such date pursuant to Section 2.10(d), duly executed by the Borrower'
(iil) (A) A copy of the articles of incorporation or other organizational
documents of the Borrower and each amendment thereto, cenified by the Secretary of State
of Oregon as being a true and correct copy thereof, and (B) a certificate from the Secretary
of State of Oregon (dated not more than 10 days prior to the date hereof) attesting to the
continued existence and good standing of the Borrower in that State.
(iv) Certified copies of the resolutions of the board of directors of the Borrower
approving this Agreement and the other Loan Documents and of all documents evidencing
other necessary corporate action and Govemmental Approvals required for the execution,
delivery and performance by the Borrower of this Agreement and the other Loan
Documents.
(v) A certificate of the Secretary or Assistant Secretary of the Borrower
certifying (A) the names and true signatures of the officers of the Borrower authorized to
sign ihis .tgreement and the other documents to be delivered by the Borrower hereunder,
and (B) that affached thereto are true and correct copies of the bylaws of the Borrower as
in effect on such date.
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(vi) A favorable opinion of in-house counsel for the Borrower, in form and
substance reasonably acceptable to the Administrative Agent.
(vii) A favorable opinion of special New York counsel for the Borrower, in form
and substance reasonably acceptable to the Administrative Agent.
(b) On such date, the following statements shall be true and the Administrative Agent
shall have received for the account ofeach Lender a certificate signed by a duly authorized officer
of the Borrower, dated such date, stating that:
(i) The representations and warranties of the Borrower contained in this
Agreement are true and correct on and as of the date of such effectiveness as though made
on and as ofsuch date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(c) The Borrower shall have paid all accrued fees and expenses under the Existing
Credit Agreement payable on the date hereof and all accrued fees and expenses of the
Administrative Agent, the Joint Lead Arangers and the Lenders payable on the date hereof
(including the accrued fees and expenses of counsel to the Administrative Agent to the extent then
due and payable).
(d) The Administrative Agent shall have received all documentation and information
required by regulatory authorities under applicable "know your customer" and anti-money
laundering rules and regulations, including without limitation the Patriot Act, to the extent such
documentation or information is requested by the Administrative Agent on behalf of the Lenders
reasonably in advance ofthe date hereof.
(e) The Administrative Agent shall have received such other approvals or documents
as the Administrative Agent, any Lender or any LC Issuing Bank shall have reasonably requested
through the Adminisfrative Agent reasonably in advance of the date hereof.
SECTION 3,02. Conditions Precedent to each Ertension of Credit
The obligation of each Lender and each LC Issuing Bank to make each Extension of Credit
to be made by it hereunder (other than in connection with any Borrowing that would not increase
the aggregate principal amount of Loans outstanding immediately prior to the making of such
Borrowing) shall be subject to the following statements being true on the date of such Borrowing
(and each of the giving of the applicable Notice of Borrowing or Request for Issuance and the
acceptance by the Borrower of the proceeds of any such Extension of Credit shall constitute a
representation and waranty by the Borrower that on the date of such Extension of Credit such
statements are true):
(i) The representations and waranties of the Borrower contained in
Section 4.01 (other than the representations and warranties in the first sentence of
Section 4.01(9), in Section 4.01(i) and in the first sentence of Section a.01(n)) are true and
correct in all material respects (without duplication of any materiality qualifiers) on and as
of the date of such Extension of Credit, before and after giving effect to such Extension of
53
Credit and to the application of the proceeds therefrom, as though made on and as of such
date, and
(ii) No event has occurred and is continuing, or would result from such
Extension of Credit or from the application of the proceeds therefrom, that constitutes a
Default.
SECTION 3.03. Conditions Precedent to Issuance of Each Bond Letter of Credit
The obligation of each LC Issuing Bank to issue any Bond Letter of Credit in connection
with any series of Bonds shall be subject to the satisfaction of the conditions precedent set forth in
Sections 3.01 and 3,02 and the further conditions precedent that:
(a) The Administrative Agent shall have received on or before the date of such issuance
the following, in form and substance reasonably satisfactory to the Administrative Agent and the
applicable Lb Issuing Bank and, to the extent requested by the Administrative Agent, in sufficient
copies for each Lender:
(i) Counterparts of any Pledge Agreement relating to such Bonds, duly
executed by the Borrower, the Administrative Agent and the applicable Custodian, or other
evidence that the Bonds purchased with the proceeds of such Bond Letter of Credit will be
effectively pledged to or held for the benefit of such LC Issuing Bank and the Lenders, and
that a separate CUSIP number has been assigned to such Bonds.
(ii) Certified copies or originals of the other applicable Related Documents
(which, in the case of the applicable Bonds, may be a specimen of such Bonds).
(iil) Certified copies of the resolutions of the board of directors of the Borrower
approving the Related Documents to which the Borrower is a party in connection with such
Bond Letter of Credit, and of all documents evidencing other necessary corporate action
and Governmental Approvals, if any, with respect to the transactions contemplated by such
Related Documents.
(iv) A certificate of the Secretary or Assistant Secretary of the Borrower
certifying the names and true signatures of the Borrower authorized to sign the Related
Documents to which the Borrower is a party in connection with such Bond Letter of Credit
and the other documents to be delivered by the Borrower hereunder in connection with the
issuance of such Bond Letter of Credit.
(v) A copy of the Official Statement, if any, relating to the Bonds to be
supported by such Bond Letter of Credit.
(vi) A certificate of an authorized officer of the applicable Custodian certiffing
the names, true signatures and incumbency of the officers of such Custodian authorized to
sign the applicable Pledge Agreement.
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(vii) A certificate of an authorized officer of the applicable Trustee certifying the
names, true signatures and incumbency of the officers of such Trustee authorized to make
drawings under such Bond Letter of Credit.
(viii) A favorable opinion of counsel to the Borrower with respect to the Related
Documents to which the Borrower is a party.
(ix) A reliance letter from bond counsel relating to the Bonds to be supported
by such Bond Letter of Credit permitting the Lenders to rely on the approving opinion of
bond counsel with respect to such Bonds.
(x) The Administrative Agent shall have received such other approvals or
documents as the Adminishative Agent, any Lender or any LC Issuing Bank shall have
reasonably requested through the Administrative Agent reasonably in advance of the date
hereof.
(b) On the date of such issuance, the following statements shall be true and correct, and
the Administrative Agent shall have received on or before such date for the account of the
applicable LC Issuing Bank and each Lender a certificate signed by a duly authorized officer of
the Borrower, dated such date, stating that the following representations and warranties are true
and correct in all material respects (without duplication of any materiality qualifiers) on and as of
such date, as though made on and as of such date:
(i) The execution, delivery and performance by the Borrower of each Related
Document to which the Borrower is a party in connection with such Bond Letter of Credit,
and the consummation of the transactions contemplated thereby, are within the Borrower's
corporate powers and have been duly authorized by all necessary corporate and shareholder
action. Each Related Document to which the Borrower is stated to be a party in connection
with such Bond Letter of Credit has been duly executed and delivered by the Borrower.
(ii) No authorization or approval or other action by, and no notice to or filing
with, any Govemmental Authority or any other third party is required for the due execution,
delivery and performance by the Borrower of any Related Document to which the
Borrower is a party in connection with such Bond Letter of Credit, other than such
authorizations, approvals, actions, notices and filings that have been obtained or made (as
applicable) prior to such date.
(iii) The execution, delivery and performance by the Borrower of each Related
Document to which the Borrower is a party in connection with such Bond Letter of Credit
will not (A) violate (x) the articles of incorporation or bylaws (or comparable documents)
of Borrower or any of its Material Subsidiaries or (y) any Applicable Law, (B) be in conflict
with, or result in a breach of or constifute a default under, any contract, agreement,
indenture or instrument to which the Borrower or any of its Material Subsidiaries is a party
or by which any of its or their respective properties is bound, or (C) result in the creation
or imposition of any Lien on the property of Borrower or any of its Material Subsidiaries
other than Permitted Liens and Liens required under this Agreement, except to the extent
55
such conflict, breach or default referred to in the preceding clause (B), individually or in
the aggregate, would not reasonably be expected to have a Material Adverse Effect.
(iv) Each Related Document to which the Borrower is aparty in connection with
such Bond Letter of Credit is the legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms.
(v) The representations and warranties of the Borrower in the Related
Documents to which the Borrower is a party in connection with such Bond Letter of Credit
are true and correct in all material respects (without duplication of any materiality
qualifiers).
ARTICLE IV
REPRESENTATIONS AI\D WARRANTIES
SECTION 4.01. Representations and Wawanties of the Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and in good standing
under the laws of the State of Oregon and is duly qualified to do business and is in good standing
as a foreign corporation under the laws of each state in which the ownership of its properties or
the conduct of iis business makes such qualification necessary, except where the failure to be so
qualified would not reasonably be expecied to have a Material Adverse Effect, and each Material
dubsidiary is duly organized, validly existing and in good standing under the laws of the
jurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by the Borrower of each l,oan Document,
and the consummation of the transactions contemplated hereby and thereby, are within the
Borrower's corporate powers and have been duly authorized by all necessary corporate action.
Each Loan Document has been duly executed and delivered by the Borrower.
(c) No authorization or approval or other action by, and no notice to or filing with, any
Governmental Authority or any other third party is required for the due execution, delivery and
performance by the Borrower of any Loan Document, other than such Governmental Approvals
ihat have been duly obtained and are in fulI force and effect, which as of the date hereof include:
Decision 88-04-062 of the Public Utilities Commission of the State of California dated April 27,
1988; Order No. 33476 of the Idaho Public Utilities Commission issued March 4,2016, in Case
No. pAC-E-16-03; Order No. 94-1240 and Order No. 98-158 of the Public Utility of Commission
of Oregon issued August 17, lgg4 and April 16, 1998, respectively; Order Establishing
Compli-ance issued eprit t, 1998, in Docket UE-980404, by the Washin$on Utilities and
Transportation Commiision; Order Approving Securities Exemption and Accepting the Substance
and Format of the Quarterly Financing Activity Report To Be Filed Thereunder issued November
1, 2010, in Docket No. 20000-372-EA-IO (Record No . 12519),by the Public Service Commission
oi Wyoming; Report and Order issued May 10, 2007, n Docket No. 07-035-16, by the Public
Service CommisJion of Utah; and Letter Order issued December 4,2015, in Docket No. ES16-3-
000, by the FERC.
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(d) The execution, delivery and performance by Borrower of the Loan Documents will
not (i) violate (A) the articles of incorporation or bylaws (or comparable documents) of Borrower
or any of its Material Subsidiaries or (B) any Applicable Law, (ii) be in conflict with, or result in
a breach of or constitute a default under, any contract, agreement, indenture or instrument to which
the Borrower or any of its Material Subsidiaries is a party or by which any of its or their respective
properties is bound or (iii) result in the creation or imposition of any Lien on the property of
Borrower or any of its Material Subsidiaries other than Permitted Liens and Liens required under
this Agreement, except to the extent such conflict, breach or default referred to in the preceding
clause (ii), individually or in the aggregate, would not reasonably be expected to have a Material
Adverse Effect.
(e) Each Loan Document is the legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms, except as limited by bankruptcy
and similar laws affecting the enforcement of creditors' rights generally and by the application of
general equitable principles.
(0 The Borrower and each Material Subsidiary are in compliance with all Applicable
Laws (including Environmental Laws), except to the extent that failure to comply would not
reasonably be expected to have a Material Adverse Effect.
(g) There is no action, suit, proceeding, claim or dispute pending or, to the Borrower's
knowledge, threatened against or affecting the Borrower or any of its Material Subsidiaries, or any
of its or their respective properties or assets, before any Governmental Authority that, individually
or in the aggregate, could reasonably be expected to have a Material Adverse Effect. There is no
injunction, writ, preliminary restraining order or any other order of any nature issued by any
Governmental Authority directing that any material aspect of the transactions expressly provided
for in any of the Loan Documents not be consummated as herein or therein provided.
(h) The consolidated balance sheet of the Borrower and its Consolidated Subsidiaries
as at December 31, 2017, and the related consolidated statements of income, cash flows and
stockholders' equity for the fiscal year ended on such date, certified by Deloitte & Touche LLp,
copies of which have heretofore been furnished to the Administrative Agent and each Lender,
present fairly in all material respects the financial condition of the Borrower and its Consolidated
Subsidiaries as at such date, and the consolidated results of their operations and cash flows for the
fiscal year then ended. All such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP applied consistently throughout the periods
involved (except as may be disclosed therein).
(i) Since Decemb er 31, 2017, no event has occurred that could reasonably be expected
to have a Material Adverse Effect.
CI) The Borrower and each Material Subsidiary have filed or caused to be filed all U.S.
Federal and other material tax returns that are required by Applicable Law to be filed, and have
paid all taxes shown to be due and payable on said returns or on any assessments made against it
or any of its property; other than (i) with respect to taxes the amount or validity of which is
currently being contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of the Borrower or the
57
applicable Material Subsidiary, as the case may be, or (ii) to the extent that the failure to do so
could not reasonably be expected to result in a Material Adverse Effect.
(k) No ERISA Event has occurred other than as would not, either individually or in the
uggr"gui., be reasonably expected to have a Material Adverse Effect. There are no actions, suits
oi.fui-r pending against or involving a Pension Plan (other than routine claims for benefits) or,
to the knowledge of the Borrower or any of its ERISA Affiliates, threatened, that would reasonably
be expected to be asserted successfully against any Pension Plan and, if so asserted successfully,
would reasonably be expected either singly or in the aggregate to have a Material Adverse Effect.
No lien imposed under the Internal Revenue Code or ERISA on the assets of the Borrower or any
of its ERISA Affiliates exists or is likely to arise with respect to any Pension Plan. The Borrower
and each of its Subsidiaries have complied with foreign law applicable to its Foreign Plans, except
to the extent that failure to comply would not reasonably be expected to have a Material Adverse
Effect.
0) The Borrower is not engaged in the business of extending credit for the purpose of
buyng oi carrying Margin Stock, and no proceeds of any Loan will be used to extend credit to
others for the iurpose oibuying or carrying any Margin Stock. Following the application of the
proceeds of any Extension of Credit, not more that}SYo of the value of the assets of the Borrower
and the Material Subsidiaries that are subject to the restrictions of Section 5.02(a) or (c) constitute
Margin Stock.
(m) Neitherthe Borrower nor any Subsidiary is an "investment company" or a company
"controlled" by an "investment company," as such terms are defined in the Investment Company
Act of 1940, as amended.
(n) There are no claims, liabilities, investigations, litigation, notices of violation or
liability, administrative proceedings, judgments or orders, whether asserted, pending or threatened,
relating to any liability under or compliance with any applicable Environmental Law, against the
Borrower or any Material Subsidiary or relating to any real property currently or formerly owned,
leased or operated by the Borrower or any Material Subsidiary, that would reasonably be expected
to have a Material Adverse Effect. No Hazardous Materials have been or are present or are being
spilled, discharged or released on, in, under or from property (real, personal or mixed) currently
oi formerly owned, leased or operated by the Borrower or any Material Subsidiary in any quantity
o, *uon"i violating, or resulting in liability under, any applicable Environmental Law, which
violation or liability would reasonably be expected to have a Material Adverse Effect.
(o) No written statement or information furnished by or on behalf of the Borrower to
the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication
or negotiation of this Agreement or delivered pursuant hereto, in each case as of the date such
statement or information is made or delivered, as applicable, contained or contains, ffiY material
misstatement of fact or intentionally omitted or omits to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they were, are, or will be
made, not misleading.
(p) Each Material Subsidiary as of the date hereof is set forth on Schedule III.
58
(q) The Borrower has implemented and maintains in effect policies and procedures
designed to promote compliance by the Borrower, its Subsidiaries and their respective directors,
officers and employees with Anti-Comrption Laws and applicable Sanctions, and the Borrower,
its Subsidiaries and, to the knowledge of the Borrower, their respective officers, directors and
employees and their respective agents that will act in any capacity in connection with or benefit
from the credit facility established hereby, are in compliance with Anti-Comrption Laws and
applicable Sanctions in all material respects. None of the Borrower or any Subsidiary is a
Sanctioned Person. No Borrowing or Letter of Credit, use of proceeds or other transaction
contemplated by this Agreement will violate any Anti-Comrption Law or applicable Sanctions.
ARTICLE V
COVENAI\TS OF THE BORROWER
SECTION 5.01. Affirmative Covenants.
So long as any Loan or any other amount payable hereunder shall remain unpaid, any Letter
of Credit shall remain outstanding or any Lender shall have any Commitrnent hereunder, the
Borrower will:
(a) Payment of Taxes, Etc. Pay and discharge, and cause each Material Subsidiary topay and discharge, before the same shall become delinquent, (i) all taxes, assessments and
governmental charges or levies imposed upon it or its property, and (ii) all lawful claims that, if
unpaid, would by Applicable Law become a Lien upon its property, in each case, except to the
extent that the failure to pay and discharge such amounts, either singly or in the aggregate, would
not reasonably be expected to have a Material Adverse Effect; provided, however,thatneither the
Borrower nor any Material Subsidiary shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and by proper proceedings and as
to which adequate reserves are being maintained in accordance with GAAP.
(b) Preserttation of Ertstunce, Etc. Preserve and maintain, and cause each Material
Subsidiary to preserve and maintain, its corporate, partnership or limited liability company (as the
case may be) existence and all rights (charter and statutory) and franchises, except to the extent
the failure to maintain such rights and franchises would not reasonably be expected to have a
Material Adverse Effect; provided,ltowever, that the Borrower and any Material Subsidiary may
consummate any merger or consolidation permitted under Section 5.02(b).
(c) Compliance with Laws, Etc. Comply, and cause each Material Subsidiary to
comply with Applicable Law (with such compliance to include, without limitation, compliance
with Environmental Laws, the Patriot Act, Anti-Comrption Laws and Sanctions), except to the
extent the failure to do so would not reasonably be expected to have a Material Adverse Effect.
(d) Inspection Rights. At any reasonable time and from time to time, permit the
Administrative Agent, any LC Issuing Bank or any Lender or any designated agents or
representatives thereof, at all reasonable times and to the extent permitted by Applicable Law, to
examine and make copies of and abstracts from the records and books of account of, and visit the
properties of, the Borrower and any Material Subsidiary and to discuss the affairs, finances and
accounts of the Borrower and any Material Subsidiary with any of their officers or directors and
59
with their independent certified public accountants (at which discussion, if the Borrower or such
Material Subsidiary so requests, a representative of the Borrower or such Material Subsidiary shall
be permitted to be p..r.rrt, and if such accountants should require that a representative of the
Borrower be preseni, the Borrower agrees to provide a representative to attend such discussion);
provided ttrai (i) such designated agents or representatives shall agree to any reasonable
confidentiality obligations pioposed by the Borrower and shall follow the guidelines and
procedures generally imposed upon like visitors to the Borrower's facilities, and (ii) unless an
-Event of Deiault shall have occurred and be continuing, such visits and inspections shall occur not
more than once in any fiscal quarter.
(e) Keeping of Books. Keep, and cause each Material Subsidiary to keep, proper books
of record and account, inwhich fuIl and correct entries shall be made of all financial transactions
and the assets and business of the Borrower and each such Material Subsidiary in accordance with
GAAP.
(f) Maintenance of Properties, Etc. Maintain and preserve, and cause each Material
Subsidiary to maintain and pieserve, all of its properties that are material to the conduct of its
business in good working order and condition, ordinary wear and tear excepted.
(g) Maintenance of Insurance. Maintain, and cause each Material Subsidiary to
maintain,'insurance with responsible and reputable insurance companies or associations in such
amounts and covering such risks as is usually carried by companies engaged in similar businesses
and owning similar pioperties in the same general areas in which Borrower or any of its Material
Subsidiaries operates to the extent available on commercially reasonable terms (the "Industry
Standart'); p)ovided, however, that the Borrower and each Material Subsidiary may self-insure
to the same extent as other companies engaged in similar businesses and owning similar properties
and to the extent consistent with prudent business practice; and provided, further, that if the
Industry Standard is such that the insurance coverage then being maintained by Borrower and its
Material Subsidiaries is below the Industry Standard, Borrower shall only be required to use its
reasonable best efforts to obtain the necessary insurance coverage such that its and its Material
Subsidiaries' insurance coverage equals or is greater than the Industry Standard.
(h) Reponing Requirements. Furnish to the Lenders:
(i) within 60 days after the end of each of the first three quarters of each fiscal
yea. of iire Borrower, a copy of the consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such quarter and consolidated statements of
income and cash flows of the Borrower and its Consolidated Subsidiaries for the period
commencing at the end of the previous fiscal year and ending with the end of such quarter,
duly certified (subject to year-end audit adjustments) by the chief financial offtcer, chief
acctunting officer, treasurer or assistant treasurer of the Borrower as having been prepared
in accordance with generally accepted accounting principles and a certificate of the chief
financial officer, chief accounting officer, treasurer or assistant treasurer of the Borrower
as to compliance with the terms of this Agreement and setting forth in reasonable detail the
calculations necessary to demonstrate compliance with Section 5.03, provided that in the
event of any change in GAAP used in the preparation of such financial statements, the
Borrower shall also provide, if necessary for the determination of compliance with Section
60
5.03, a statement of reconciliation conforming such financial statements to GAAP in effect
on the date hereof;
(ii) within 120 days after the end of each fiscal year of the Borrower, a copy of
the annual audit report for such year for the Borrower and its Consolidated Subsidiaries,
containing a consolidated balance sheet of the Borrower and its Consolidated Subsidiaries
as of the end of such fiscal year and consolidated statements of income and cash flows ofthe Borrower and its Consolidated Subsidiaries for such fiscal year, in each case
accompanied by an opinion by Deloitte & Touche LLP or other independent public
accountants of nationally recognized standing, and a certificate of the chief financial
officer, chief accounting officer, treasurer or assistant treasurer of the Borrower as to
compliance with the terms of this Agreement and setting forth in reasonable detail the
calculations necessary to demonstrate compliance with Section 5.03, provided that in the
event of any change in GAAP used in the preparation of such financial statements, the
Borrower shall also provide, if necessary for the determination of compliance with Section
5.03, a statement of reconciliation conforming such financial statements to GAAP in effect
on the date hereof;
(iii) within five days after the chief financial oflicer or treasurer of the Borrower
obtains knowledge of the occrurence of any Default, a statement of the chief financial
officer or treasurer of the Borrower setting forth details of such Default and the action that
the Borrower has taken and proposes to take with respect thereto;
(iv) within ten Business Days after the Borrower or any of its ERISA Affiliates
knows or has reason to know that (A) the Borrower or any of its ERISA Affiliates has
failed to comply with ERISA or the related provisions of the Internal Revenue Code with
respect to any Pension Plan, and such noncompliance will, or could reasonably be expected
to, result in material liability to the Borrower or its Subsidiaries, and/or (B) any ERISA
Event (other than an ERISA Event as defined in clause (vi) of the definition of "ERISA
Event") has occurred, a certificate of the chief financial officer of the Borrower describing
such ERISA Event and the action, if any, proposed to be taken with respect to such ERISA
Event and a copy of any notice filed with the PBGC or the IRS pertaining to such ERISA
Event and all notices received by the Borrower or such ERISA Affiliate from the PBGC or
any other governmental agency with respect thereto;
(v) promptly after the commencement thereof, notice of all actions and
proceedings before, and orders by, any Governmental Authority affecting the Borrower or
any Material Subsidiary of the type described in Section 4.01(9);
(vi) together with the financial statements delivered in paragraphs (i) and (ii) of
this Section 5.01(h), if Schedule III shall no longer set forth a complete and correct list of
all Material Subsidiaries as of the last date of the period for which such financial statements
were prepared, an updated Schedule III setting forth all Material Subsidiaries as of the last
date of such period for which such financial statements have been prepared;
(vii) promptly upon the occrurence of a Reportable Compliance Event, notice of
such occurrence; and
6l
(viii) such other information respecting the Borrower or any of its Subsidiaries as
any Lender through the Administrative Agent may from time to time reasonably request.
If the financial statements required to be delivered pursuant to Section 5.01(hxi) or 5.01(h)(ii) are
included in any Form 10-K or 10-Q filed by the Borrower, the Borrower's obligation to deliver
such documerrts or information to the Administrative Agent shall be deemed to be satisfied upon
(x) delivery of a copy of the relevant form to the Administrative Agent within the time period
iequired by such Seciion or (y) the relevant form being available on EDGAR and the delivery of
a notice to the Administrative Agent (which notice may be delivered by electronic mail and./or
included in the applicable compliance certificate delivered pursuant to Section 5.01(h)(i) or
5.01(hxii)) that suctr form is so available, in each case within the time period required by such
Section.
(i) [Ise of Proceeds. rJsethe proceeds of the Borrowings and the Letters of Credit for
working capital and other general corporate purposes.
1i; Control of Purchased Bonds. So long as any Bond Letter of Credit shall remain
outstanding, cause each Bond purchased with the proceeds of such Bond Letter of Credit to be
subject to t5" Lien of an applicable Pledge Agreement or otherwise registered in the name of the
appiicable LC Issuing Bank, the Administrative Agent or any nominee of such LC Issuing Bank
or of the Administrative Agent pending the remarketing of such Bonds pursuant to the applicable
Remarketing Agreement and the other applicable Related Documents.
SECTION 5.02. Negative Covenants,
So long as any Loan or any other amount payable hereunder shall remain unpaid, any Letter
of Credit shall remain outstanding or any Lender shall have any Commitrnent hereunder, the
Borrower agrees that it will not:
(a) Liens, Etc, Create or suffer to exist, or cause or permit any Materill Subsidiary to
create or suffer to exist, any Lien on or with respect to any of its properties, including, without
limitation, equity interests held by such Person in any Subsidiary of such Person, whether now
owned or hereafter acquired, other than (i) Permitted Liens, (ii) Liens created under SectionZ.22
or 6.02, (iii) Liens created by or pursuant to (x) the Mortgage and Deed of Trust, dated as of
January g, 1989, as amended, modified or supplemented, of PacifiCorp, entered into with The
gant ofNew York Mellon Trust Company, N.A. (as successor trustee to JPMorgan Chase Bank,
N.A.) or (y) any other first mortgage indenture or similar agreement or instrument pursuant to
which the Borrower or any of lts Material Subsidiaries may issue bonds, notes or similar
instruments secured by a lien on all or a substantial portion of its fixed assets, so long as under the
terms of such other indenture or similar agreement or instrument no "cross-default" or similar
..event of default" (howsoever designated) in respect of any bonds, notes or other instruments
issued thereunder will be triggered by reference to a Default, and (iv) Liens, in addition to the
foregoing, securing obligations not greater than the greater of (A) 7.5% of consolidated
sharlhotders' equity of all classes (whether common, preferred, mandatorily convertible preferred
or preference) of the Borrower and (B) $100,000,000.
62
(b) Mergers, Etc. Merge or consolidate with or into any Person, unless (i) the
successor entity (if other than the Borrower) (A) assumes, in form reasonably satisfactory to the
Administrative Agent, all of the obligations of the Borrower under this Agreement, (B) is a
corporation or limited liability company formed under the laws of the United Stutes of America,
one of the states thereof or the District of Columbia, (C) is in pro forma compliance with the
covenant in Section 5.03 both before and after giving effect to such proposed transaction
(determined as if such proposed transaction had occurred on the last day of the most recent fiscal
quarter period preceding the date of such proposed transaction for which financial statements have
been delivered pursuant to Section 5.01(h) and (D) has long-term senior unsecured debt ratings
issued (and confirmed after giving effect to such merger) by S&P or Moody's of at least BBB- and
Baa3, respectively (or if no such ratings have been issued, commercial paper ratings issued (and
confirmed after giving effect to such merger) by S&P and Moody's of at least A-3 and P-3,
respectively), and (ii) no Default shall have occurred and be continuing at the time of such
proposed transaction or would result therefrom, andprovided, in each case of clause (i) where the
successor entity is other than the Borrower, that the Administrative Agent shall have received, and
be reasonably satisfied with, all documentation and information required by regulatory authorities
under applicable "know your customer" and anti-money laundering rules and regulations,
including without limitation the Patriot Act, to the extent such documentation or information is
requested by the Administrative Agent on behalf of the Lenders prior to the date of such proposed
transaction.
(c) Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of all or substantially
all ofits assets to any Person, or grant any option or other right to purchase, lease or otherwise
acquire such assets, except that the Borrower may sell, lease, transfer or otherwise dispose of all
or substantially all of its assets to any Person so long as the requirements set forth in Section
5.02(b) are satisfied as if such disposition were a merger or consolidation in which the Borrower
is not the surviving entity.
(d) Use of Proceeds. Use the proceeds of any Extension of Credit to buy or carry
Margin Stock in violation of the Margin Regulations.
(e) Optional Redemption of Bonds. So long as any Bond Letter of Credit shall remain
outstanding, cause or permit delivery of a notice of an optional redemption or purchase of the
applicable Bonds or of a change in the interest modes (other than to or from a mode in which
interest is payable at arate determined daily or weekly) on such Bonds resulting in a mandatory
redemption or purchase of such Bonds under the applicable Indenture, unless (i) the Borrower has
deposited with the Administrative Agent, the applicable LC Issuing Bank or the applicable Trustee
an amount equal to the principal of, premium, if any, and interest on such Bonds on the date of
such redemption or purchase, or (ii) any notice of such redemption or purchase or change in the
applicable interest mode is conditional upon receipt by the applicable Trustee or paying agent on
or prior to the date fixed for the applicable redemption or purchase of funds (other than funds
drawn under such Bond Letter of Credit) sufficient to pay the principal of, premium, if any, and
interest on such Bonds on the date of such redemption or purchase.
(D Amendments to Indenture. So long as any Bond Letter of Credit shall remain
outstanding, amend, modify, terminate or grant, or permit the amendment, modification,
termination or grant of, any waiver under (or consent to, or permit or suffer to occur any action or
63
omission which results in, or is equivalent to, an amendment, modification, or grant of a waiver
under) any provision of the applicable Indenture that would (i) directty affect the rights or
obligations of tn" applicable LC Issuing Bank under the applicable Related Documents without
the prior written conient of such LC Issuing Bank or (ii) have an adverse effect on the rights or
obligations of the Lenders hereunder without the prior written consent of the Required Lenders.
(g) Official Statemenl So long as any Bond Letter of Credit shall remain outstanding,
refer to lhe appflable LC Issuing Bank in the Offrcial Statement with respect to the applicable
Bonds or make any changes in reference to such LC Issuing Bank in any revision, amendment or
supplement without the prior consent of such LC Issuing Bank, or revise, amend or supplement
r*t Offi"ial Statement without providing a copy of such revision, amendment or supplement, as
the case may be, to such LC Issuing Bank.
(h) Use of Proceeds of Bond Letter of Credit So long as any Bond I etter of Credit
shall remain outstanding, permit any proceeds of such Bond Letter of Credit to be used for any
purpose other than the payment of the principal of, interest on, redemption price of and purchase
price of the applicable Bonds.
(i) Compliance with Anti-Corruption Laws and Sanctions. The Borrower will not,
directly or, to the knowledge of the Borrower, indirectly, use the proceeds of any Borrowing or
any Litter of Credit, or lend, contribute or otherwise make available such proceeds to any
Subsiaiary, joint venture partner or other Person (i) in furtherance of an offer, payment, promise
to pay, or authorization of the payment or giving of money, or anything else of value, to any Person
in viotation of any Anti-Comrption Laws, (ii) for the purpose of funding, financing or facilitating
any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned
Country, or (iii) in any manner that would result in the violation of any Sanctions by the Borrower
or any of it.'subsidiaries or, to the knowledge of the Borrower, any other party (including each
Credit Party) to this Agreement or the other Loan Documents.
SECTION 5.03. Financial Covenant.
So long as any Loan shall remain unpaid, any Letter of Credit shall remain outstanding or
any Lender shall have any Commitment hereunder, the Borrower will maintain a ratio of
Consolidated Debt to Consolidated Capital of not gleater than 0.65 to 1.00 as of the last day of
each fiscal quarter.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Defoull
If any of the following events (*Events of Defaulf') shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan when the same becomes
due and'payable, or shall fail to pay any interest on any Loan or make any other payment of fees
or other amounts payable under this Agreement within five days after the same becomes due and
64
payable, or shall fail to provide Cash Collateral in accordance with Section2.2l(a)(v),2.22 or 6.02
within five days after the same is required to be provided; or
(b) Any representation or warranty made by the Borrower herein or by the Borrower
(or any of its officers) in connection with this Agreement shall prove to have been incorrect in any
material respect when made; or
(c) (i) The Borrower shall fail to perform or observe any term, covenant or agreement
contained in Section 5.01(b), 5.01CI), 5.02 or 5.03, or (ii) the Borrower shall fail to perform or
observe any other term, covenant or agreement contained in this Agreement or any other Loan
Document if such failure shall remain unremedied for 30 days after written notice thereof shall
have been given to the Borrower by the Administrative Agent or any Lender; or
(d) The Borrower or any Material Subsidiary shall fail to pay any principal of or
premium or interest on any Debt (other than Debt under this Agreement) that is outstanding in a
principal amount in excess of $100,000,000 in the aggregate when the same becomes due and
payable (whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt; or any other event shall occur or condition shall
exist under any agreement or instrument relating to any such Debt and shall continue after the
applicable grace period, if any, specified in such agreement or instrument, if the effect of such
event or condition is to accelerate, or to permit the acceleration of the maturity of such Debt; or
any such Debt shall be declared to be due and payable, or required to be prepaid or redeemed (other
than by a regularly scheduled required prepayment or redemption), prior to the stated maturity
thereof; or
(e) Any judgment or order for the payment of money in excess of $ 1 00,000,000 to the
extent not paid or insured shall be rendered against the Borrower or any Material Subsidiary and
either (i) enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be
in effect; or
(0 The Borrower or any Material Subsidiary shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding shall be instituted by or against
the Borrower or any Material Subsidiary seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustrnent, protection, relief, or
composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar offrcial for it or for any substantial part of its property and, in
the case of any such proceeding instituted against it (but not instituted by it), either such proceeding
shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for relief against, or the
appointment of a receiver, fiustee, custodian or other similar official for, it or for any substantial
part of its property) shall occur; or the Borrower or any Material Subsidiary shall take any
corporate action to authorize any of the actions set forth above in this subsection (0; or
65
(g) An ERISA Event shall have occurred that, when taken together with all other
ERISA Events that have occurred, has resulted in, or is reasonably likely to result in, a Material
Adverse Effect; or
(h) (i) Berkshire Hathaway shall fail to own, directly or indirectly, at least 50% of the
issued anil outstanding shares of common stock of the Borrower, calculated on a fully diluted basis
or (ii) Berkshire Hathaway Energy Company shall fail to own, directly or indirectly, at least 80%
of the issued and outstanding shares of common stock of the Borrower, calculated on a fully diluted
basis (each , a"Change of Controt'); provided that, in each case of the foregoing clauses (i) and
(ii), such failure shall not constitute an Event of Default unless and until a Rating Decline has
occurred;
then, and in any such event, the Administrative Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the obligation of each Lender
and each LC Issuing Bank to make Extensions of Credit to be terminated, whereupon the same
shall forthwith terminate; (ii) shall at the request, or may with the consent, of the Required Lenders,
by notice to the Borrower, declare the outstanding Borrowings, all interest thereon and all other
amounts payable under this Agreement to be forthwith due and payable, whereupon the
outstanding borrowings, all such interest and all such amounts shall become and be forthwith due
and payabli by the Borrower, without presentment, demand, protest or further notice of any kind,
all oiwhich are hereby expressly waived by the Borrower; provided, however, that in the event of
an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy
Code ofthe United States of America, (A) the obligation of each Lender and each LC Issuing Bank
to make Extensions of Credit shall automatically be terminated and (B) the outstanding
Borrowings, all such interest and all such amounts shall automatically become and be due and
payable, wittrout presentment, demand, protest or any notice of any kind, all of which are hereby
i*pressly waived by the Borrower; (iii) shall at the request, or may with the consent, of the
Required Lenders by notice to the Borrower, give notice of the occurrence of an Event of Default
to the Trustee for each series of Bonds supported by a Bond Letter of Credit issued for the account
of the Borrower and instruct such Trustee either to accelerate such Bonds, thereby causing such
Bond Letter of Credit to expire thereafter, per the terms of such Bond Letter of Credit, or to effect
a mandatory tender of such Bonds; and (iv) shall at the request, or may with the consent, of the
Required Lenders by notice to the Borrower, pursue any rights and remedies on behalf of the
Lenders and the applicable LC Issuing Bank that the Administrative Agent may have under the
Related Documents executed and delivered in connection with any Bond Letter of Credit'
In addition, if an "Event of Default" (or any other similar term) under and as defined in
any Indenture executed and delivered in connection with any Bond Letter of Credit (a"Bond Event
of Defoulf') shall have occurred and be continuing, such circumstance shall constitute an Event
of Oelautt hereunder solely for the purpose of permitting the exercise of the remedies described in
clauses (iii) and (iv) of the immediately preceding paragraph with respect to the Bonds for which
such Bond Event of Default exists and the related Bond Letter of Credit and not for any other
purpose under this Agreement. For the avoidance of doubt, a Bond Event of Default shall not give
fur.-ea*inistrative Agent the right to exercise any other remedy described in the immediately
preceding paragraph, unless such Bond Event of Default, or the facts and circumstances underlying
such gond Bvent of Default, gives rise to another Event of Default otherwise described in Section
6.01.
66
sECTroN 6.02. Actions in Respect of the Letters of credit upon Default
If any Event of Default described in Section 6.01(0 with respect to the Borrower shall have
occurred and be continuing or the Borrowings shall have otherwise been accelerated or the
Commitments terminated pursuant to Section 6.01, then the Administrative Agent may, or shall at
the request of the Required Lenders, make demand upon the Borrower to, and forthwith upon such
demand (or, in the case of an Event of Default under Section 6.01(0 with respect to the Borrower,
automatically without demand) the Borrower will, deposit in an account designated in such
demand (the "LC Collateral Accounf') with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders and LC Issuing Banks, in same day funds,
an amount equal to 103% of the aggregate undrawn stated amounts of all Letters of Credit that are
outstanding on such date. If at any time the Administrative Agent determines that any funds held
in the LC Collateral Account are subject to any right or claim of any Person other than the
Administrative Agent, the Lenders and the LC Issuing Banks or that the total amount of such funds
is less than 103% of the aggregate undrawn stated amounts of all Letters of Credit that are
outstanding on such date, the Borrower will, forthwith upon demand by the Administrative Agent,
pay to the Administrative Agent, as additional funds to be deposited and held in the LC Collateral
Account, an amount equal to the excess of (i) 103% of such aggregate undrawn stated amounts of
all Letters of Credit that are outstanding on such date over (ii) the total amount of funds, if any,
then held in the LC Collateral Account that the Administrative Agent determines to be free and
clear of any such right and claim. Upon the drawing of any Letter of Credit for which funds are
on deposit in the LC Collateral Account, such funds shall be applied to reimburse the relevant LC
Issuing Bank or Lender holding a participation in the reimbursement obligation of the Borrower
to such LC Issuing Bank to the extent permitted by Applicable Law.
ARTICLE VII
THE ADIVIINIS TRATIVE AGENT
SECTION 7.01. Appointment and Authority.
Each Lender and each LC Issuing Bank hereby irrevocably appoints JPMCB to act on its
behalf as the Administrative Agent hereunder, under the other Loan Documents and the Related
Documents and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof,
together with such actions and powers as ure reasonably incidental thereto. The provisions of this
Article are solely for the benefit of the Administrative Agent, the Lenders and the LC Issuing
Banks, and the Borrower shall not have rights as a third-party beneficiary of any of such provisions.
It is understood and agreed that the use of the term "agent" herein, in any other Loan Document
or any Related Document (or any other similar term) with reference to the Administrative Agent
is not intended to connote any fiduciary or other implied (or express) obligations arising under
agency doctrine of any Applicable Law. Instead such term is used as a matter of market custom,
and is intended to create or reflect only an administrative relationship between contracting parties.
SECTION 7,02. Rights as a Lender.
The Person serving as the Administrative Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same as though it
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were not the Administrative Agent, and the term "Lender'o or o'Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person serving as the
Rdministrative Agent hereunder in its individual capacity. Such Person and its Affiliates may
accept deposits from, lend money to, own securities of, act as the financial advisor or in any other
advisory capacity for, and generally engage in any kind of business with, the Borrower or any
Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder
and without any duty to account therefor to the Lenders.
SECTION 7.03. Exculpatory Provisions.
(a) The Administrative Agent shall not have any duties or obligations except those
,*pr".rly set forth herein, in the other Loan Documents and in the Related Documents, and its
Outies hireunder shall be administrative in nature. Without limiting the generality of the foregoing,
the Administrative Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;
(ii) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated
hereby, by the other Loan Documents or by the Related Documents that the Administrative
Ag""a is iequired to exercise as directed in writing by the Required Lenders (or such other
,rr*b". or percentage of the Lenders as shall be expressly provided for herein, in the other
Loan Documents or in the Related Documents); provided that the Administrative Agent
shall not be required to take any action that, in its opinion or the opinion of its counsel,
may expose the Administrative Agent to liability or that is contrary to any Loan Document,
*y n tut"a Document or Applicable Law, including for the avoidance of doubt any action
that may be in violation of the automatic stay under any Debtor Relief Law or that may
effect a forfeiture, modification or termination of property of a Defaulting Lender in
violation of any Debtor Relief Law; and
(iii) shall not, except as expressly set forth herein, in the other Loan Documents
or in the Related Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of its Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent or any of
its Affiliates in any capacity.
(b) The Administrative Agent shall not be liable for any action taken or not taken by it
(i) with the consent or at the request of the Required Lenders (or such other number or percentage
of th" Lenders as shall be necJssary, or as the Administrative Agent shall believe in good faith
shall be necessary, under the circumstances as provided in Sections 6.01,6.02 and 8.01), or (ii) in
the absence of its own gross negligence or willful misconduct as determined by a court of
competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be
deemed rroi to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent in writing by the Borrower, a Lender or an LC Issuing Bank.
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(c) The Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, walranty or representation made in or in connection with this
Agreement, dfry other Loan Document or any Related Document, (ii) the contents of any
certificate, report or other document delivered hereunder or thereunder or in connection herewith
or therewith, (iii) the performance or observance of any of the covenants, agreements or other
terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan Document, any
Related Document or any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article III or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the Administative Agent.
SECTION 7.04. Reliance by Administrative Agenl
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability
for relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Administrative Agent also may rely upon any statement made to it
orally or by telephone and believed by it to have been made by the proper Person, and shall not
incur any liability for relying thereon. [n determining compliance with any condition hereunder
to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that
by its terms must be fulfilled to the satisfaction of any Lender or an LC Issuing Bank, the
Administrative Agent may presume that such condition is satisfactory to such Lender or such LC
Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such
Lender or such LC Issuing Bank prior to the making of such Loan or the issuance of such Letter
of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such counsel, accountants or
experts.
SECTION 7.05. Resignation of Administrative Agenl
(a) The Administrative Agent may at any time give notice of its resignation to the
Lenders, the LC Issuing Banks and the Borrower. Upon receipt of any such notice of resignation,
the Required Lenders shall have the right, in consultation with the Borrower, to appoint a
successor, which shall be (i) a commercial bank with an office in the United States having a
combined capital and surplus of at least $500,000,000, or an Affiliate of any such bank with an
office in the United States and (ii) subject to the approval of the Borrower so long as no Default
shall have occurred and be continuing (such approval not to be unreasonably withheld or delayed).
Ifno such successor shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent gives notice of its
resignation (or such earlier day as shall be agreed by the Required Lenders) (the "Resignation
Effective Date"), then the retiring Administrative Agent may (but shall not be obligated to), on
behalf ofthe Lenders and the LC Issuing Banks, appoint a successor Administrative Agent meeting
the qualifications set forth above. Whether or not a successor has been appointed, such resignation
shall become effective in accordance with such notice on the Resignation Effective Date.
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(b) If the Person serving as Adminisffative Agent is a Defaulting Lender pursuant to
clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by
Applicable Law, by notice in writing to the Borrower and such Person remove such Person as
Administrative Agent and, in consultation with the Borrower, appoint a successor, which shall be
(i) a commercial bank with an office in the United States having a combined capital and surplus
of at least $500,000,000, or an Affiliate of any such bank with an office in the United States and
(ii) subject to the approval of the Borrower so long as no Default shall have occurred and be
continuing (such approval not to be unreasonably withheld or delayed). If no such successor shall
have been so appointed by the Required Lenders and shall have accepted such appointment within
30 days (or such earlier day as shall be agreed by the Required Lenders) (the"Removal Effective
Date';),then such removal shall nonetheless become effective in accordance with such notice on
the Removal Effective Date.
(c) With effect from the Resignation Effective Date or the Removal Effective Date (as
applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties
and obligations hereunder and under the other Loan Documents and (2) except for any indemnity
payments owed to the retiring or removed Administrative Agent, all payments, communications
*d d"t"r-inations provided to be made by, to or through the Administrative Agent shall instead
be made by or to each Lender and each LC Issuing Bank directly, until such time, if any, as the
Required ienders appoint a successor Administrative Agent as provided for above. Upon the
acciptance of a successor's appointment as Administrative Agent hereunder, such successor shall
succied to and become vested with all of the rights, powers, privileges and duties of the retiring
or removed Administrative Agent (other than any rights to indemnity payments owed to the
retiring or removed Administrative Agent), and the retiring or removed Administrative Agent shall
be discharged from all of its duties and obligations hereunder, under the other Loan Documents or
under the Related Documents. The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the retiring or removed Administrative Agent's resignation
or removal hereunder, under the other Loan Documents and under the Related Documents, the
provisions of this Article and Section 8.04 shall continue in effect for the benefit of such retiring
or removed Adminisfative Agent, its sub-agents and their respective Related Parties in respect of
any actions taken or omitted to be taken by any of them while the retiring or removed
Administrative Agent was acting as Administrative Agent.
(d) Notrryithstanding anything in this Section 7.05 to the contrary, the retiring or
removed Administrative Agent shall continue to hold any collateral (including cash collateral and
collateral held under any Pledge Agreement) as bailee for the benefit of the LC Issuing Banks and
the Lenders until a successor Administrative Agent has been appointed in accordance with this
Section 7.05.
SECTION 7.06. Non-Reliance on Administrative Agent and Other Lenders.
Each Lender and LC Issuing Bank acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender and LC Issuing Bank also
acknowledges that it will, independently and without reliance upon the Administrative Agent or
70
any other Lender or any of their Related Parties and based on such documents and information as
it shall from time to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any other Loan Document, any Related
Document or any related agteement or any document furnished hereunder or thereunder.
SEC TION 7. 0 7. Indemnification.
Each Lender severally agrees to indemnifu the Administrative Agent (to the extent not
promptly reimbursed by the Borrower and without limiting its obligation to do so) from and against
such Lender's Commitment Percentage of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the Administrative Agent in
any way relating to or arising out of this Agreement, any other Loan Document or any Related
Document or any action taken or omitted by the Administrative Agent under this Agreement, any
other Loan Document or any Related Document;provided, however, that no Lender shall be liable
for anyportion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agent's gross negligence or
willful misconduct, as proven in a court of competent jurisdiction by final and nonappealablejudgment Without limitation of the foregoing, each Lender agrees to reimburse the
Administrative Agent promptly upon demand for its Commitment Percentage of any costs and
expenses (including, without limitation, fees and reasonable expenses of counsel) payable by the
Borrower under Section 8.04, to the extent that the Administrative Agent is not promptly
reimbursed for such costs and expenses by the Borrower (and without limiting its obligation to do
so) after request therefor. The failure of any Lender to reimburse the Administrative Agent
promptly upon demand for its Commitment Percentage of any amount required to be paid by the
Lender to the Administrative Agent as provided herein shall not relieve any other Lender of its
obligation hereunder to reimburse the Administrative Agent for its Commitment Percentage of
such amount, but no Lender shall be responsible for the failure of any other Lender to reimburse
the Administrative Agent for such other Lender's Commitment Percentage of such amount.
Without prejudice to the survival of any other agreement of any Lender hereunder, the agreement
and obligations of each Lender contained in this Section 7.07 shall survive the payment in full of
principal, interest and all other amounts payable hereunder.
SECTION 7.08. No Other Duties, etc
Anything herein to the contrary notwithstanding, none of the Joint Lead Arangers, theo'Joint Bookrunners", the "Syndication Agents" or the Documentation Agents listed on the cover
page hereof shall have any powers, duties or responsibilities under this Agreement, any other Loan
Document or any Related Document, except in its capacity, as applicable, as the Administrative
Agent, a Lender or an LC Issuing Bank hereunder or thereunder.
7T
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc.
Subject to Section 2.12(c) and Section 2.21(a)(i),no amendment or waiver of any provision
of this Agreement, nor consent to any departure by the Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Required Lenders and the Borrower,
and then such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that, no amendment, waiver or consent shall, unless
in writing and signed by each Lender directly affected thereby (other than, in the case of clause (i)
or (v) below, any Defaulting Lender), do any of the following: (i) amend Section 3.01,3.02 or 3.03
or waive any of the conditions specified therein, (ii) increase the Commitrnent of any Lender or
extend the Commitments (except pursuant to Section 2.06 or 2.07), (iii) reduce the principal of, or
interest on, or rate of interest applicable to, the outstanding Loans or any fees or other amounts
payable hereunder, (iv) postpone any date fixed for anypayment of principal of, or interest on, the
orirt*airg Loans, reimbursement obligations or any fees or other amounts payable hereunder, (v)
change the definition of Required Lenders or change the percentage of the Commitrnents or of the
aggregate unpaid principal amount of the outstanding Borrowings, or the number or the percentage
of Lenders, that shall be required for the Lenders or any of them to take any action hereunder, or
(vi) amend or waive this Section 8.01 or any provision of this Agreement that requires pro rata
treatment of the Lenders; and provided further that (x) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent or any LC Issuing Bank in addition to
the Lenders required above to take such action, affect the rights or duties of the Administrative
Agent or such LC Issuing Bank, as the case may be, under this Agreement and (y) no amendment,
*ui1..r or consent shall, unless in writing and signed by the Administrative Agent, each LC Issuing
Bank and the Required Lenders, amend or waive Section 2.21. Notwithstanding the foregoing,
any provision of this Agreement may be amended by an agreement in writing entered into by the
Borrower, the Required Lenders and the Administrative Agent if by the terms of such agleement
the Commitnent of each Non-Consenting Lender and the obligations of each LC Issuing Bank not
consenting to the amendment provided for therein shall terminate (but such Non-Consenting
Lender or LC Issuing Bank shall continue to be entitled to the benefits of Sections 2.15,2.18 and
8.04) upon the effectiveness of such amendment, and such Non-Consenting Lender or LC Issuing
Bank shall have received or shall at the time of such termination receive payment of an amount
equal to the outstanding principal of its Loans and any participations in Letters of Credit funded
pursuant to Section 2.04(e),together with all applicable accrued interest thereon, accrued fees and
all other amounts then payable to it hereunder and under the other lnan Documents.
SECTION 8.02. Notices, Etc.
(a) Notices Generally, Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (b) below), all
notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as
follows:
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(i) if to the Borrower, to it at 825 N.E. Multnomah Street, Suite 1900, Portland,
Oregon 97232-4116, Attention: Nikki L. Kobliha, Vice President, Chief Financial Officer
and Treasurer (Facsimile: (503) 813-5625; Telephone No. (503) 813-5645);
if to the Administrative Chase N.A. at
(iii) if to any LC Issuing Bank identified on Schedule II hereto, at the address
specified opposite its name on Schedule II hereto, and if to any other LC Issuing Bank, at
such address as shall be designated by such LC Issuing Bank in a written notice to the
Administrative Agent and the Borrower;
(iv) if to any Initial Lender, at its Domestic Lending Office specified opposite
its name on Schedule I hereto, and if to any other Lender at its Domestic Lending Office
specified in the Assignment and Assumption pursuant to which it became a Lender.
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by facsimile shall be deemed to have
been given when sent (except that, if not given during normal business hours for the recipient,
shall be deemed to have been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications, to the extent provided in
subsection (b) below, shall be effective as provided in said subsection (b).
(b) Electronic Communicaflozs. Notices and other communications to the Lenders
and the LC Issuing Banks hereunder may be delivered or fumished by electronic communication
(including e-mail and Intemet or intranet websites) pursuant to procedures approved by the
Administrative Agent,provided that the foregoing shall not apply to notices to any Lender or any
LC Issuing Bank pursuant to Section 2.02 or 2.04 if such Lender or such Issuing Bank, as
applicable, has notified the Administrative Agent that it is incapable of receiving notices under
such Section by electronic communication. The Administrative Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; providedthatapproval of such procedures
may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the sender's receipt of
an acknowledgement from the intended recipient (such as by the "return receipt requested"
function, as available, return e-mail or other written acknowledgement), and (ii) notices or
communications posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient, at its e-mail address as described in the foregoing
clause (i), of notification that such notice or communication is available and identifying the
website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, email or
other communication is not sent during the normal business hours of the recipient, such notice or
73
commgnication shall be deemed to have been sent at the opening of business on the next business
day for the recipient.
(c) Change of Address, etc, Any party hereto may change its address or facsimile
number for notices and other communications hereunder by notice to the other parties hereto.
(d) Platform.
(i) The Borrower agrees that the Administrative Agent may, but shall not be
obligated to, make the Communications (as defined below) available to the LC Issuing
Banks and the other Lenders by posting the Communications on Debt Domain, Intralinks,
Syndtrak or a substantially similar electronic transmission system (the "Platform").
(ii) The Platform is provided ooas is" and "as available." The Agent Parties (as
defined below) do not warrant the adequacy of the Platform and expressly disclaim liability
for errors or omissions in the Communications. No waranty of any kind, express, implied
or statutory, including, without limitation, any warranty of merchantability, fitress for a
particular purpose, non-infringement of third-party rights or freedom from viruses or other
iode defects, is made by any Agent Party in connection with the Communications or the
Platform. [n no event shall the Administrative Agent or any of its Related Parties
(collectively, the "Agent Parties-) have any liability to the Borrower, any Lender or any
other Person or entity for damages of any kind, including, without limitation, direct or
indirect, special, incidental or consequential damages, losses or expenses (whether in tort,
contract or otherwise) arising out of the Borrower's or the Administrative Agent's
transmission of communications through the Platform except to the extent that such
damages are found in a judgment by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from such Agent Party's gross negligence or
willful misconduct . o'Communications" means, collectively, any notice, demand,
communication, information, document or other material provided by or on behalf of the
Borrower pursuant to any Loan Document or the transactions contemplated therein which
is distributed to the Administrative Agent, any Lender or any LC Issuing Bank by means
of electronic communications pursuant to this Section, including through the Platform.
SECTION 8.03. No Waiver; Remedies.
No failure on the part of any Lender or the Administrative Agent to exercise, and no delay
in exercising, my right hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any remedies provided
by law.
SECTION 8.04. Costs and Expenses; Indemniftcation.
(a) The Borrower agrees to pay promptly upon demand (i) all reasonable out-of-pocket
costs and expenses of the Administrative Agent, the Joint Lead Arrangers and their respective
Affiliates in connection with the preparation, negotiation, execution, delivery, administration,
modification and amendment of this Agreement and the other documents to be delivered
hereunder, including, without limitation, (A) all due diligence, syndication (including printing,
74
distribution and bank meetings), transportation, computer, duplication, appraisal, consultant, and
audit expenses and (B) the reasonable fees and expenses of counsel for the Administrative Agent
with respect thereto and with respect to advising the Administrative Agent as to its rights and
responsibilities under this Agreement, and (ii) all reasonable out of pocket expenses incurred by
any LC Issuing Bank in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder. The Borrower further agrees to pay
promptlyupon demand all reasonable costs and expenses of the Administrative Agent, the Lenders
and the LC Issuing Banks, if any, (A) in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents,
including its rights under this Section, or (B) in connection with the Loans made or Letters of
Credit issued hereunder, including all such reasonable out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Leffers of Credit, including,
without limitation, reasonable fees and expenses of one outside counsel for the Administrative
Agent, the Lenders and the LC Issuing Banks taken as a whole in connection with the enforcement
of rights under this Section 8.04(a) (and, with respect to matters referred to in clause (A) of this
sentence only, separate counsel for the Administrative Agent, any Lender and any LC Issuing
Banks to the extent needed to avoid an actual or potential conflict of interest).
(b) The Borrower shall indemnify the Administrative Agent (and any sub-agent
thereof), the Joint Lead Arrangers, each Lender and each LC Issuing Bank, and each Related Party
of any of the foregoing Persons (each, an "Indemnifted Party") from and against any and all
claims, damages, losses and liabilities, joint or several, to which any such Indemnified Party may
become subject, in each case arising out of or in connection with or relating to (including, without
limitation, in connection with any investigation, litigation or proceeding or preparation of a defense
in connection therewith) this Agreement, any of the transactions contemplated herein or the actual
or proposed use of the proceeds of the Extensions of Credit, and shall reimburse any Indemnified
Party for any and all reasonable expenses (including, without limitation, reasonable fees and
expenses of counsel) as they are incurred in connection with the investigation of or preparation for
or defense of any pending or threatened claim or any action or proceeding arising therefrom,
whether or not such Indemnified Party is a party (but if not aparty thereto, then only with respect
to such proceedings where such Indemnified Party (i) is subject to legal process or other
compulsion of law, (ii) believes in good faith that it will be so subject, or (iii) believes in good
faith that it is necessary or appropriate for it to resist any legal process or other compulsion of law
which is purported to be asserted against it) and whether or not such claim, action or proceeding
is initiated or brought by or on behalf of the Borrower or any of its Affiliates and whether or not
any of the transactions contemplated hereby are consunmated or this Agreement is terminated,
except to the extent such claim, damage, loss, liability or expense is found in ajudgment by a court
of competent jurisdiction by final and nonappealable judgment to have resulted from such
Indemnified Party's gross negligence, bad faith or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the indemnity in this Section 8.04(b) applies,
such indemnity shall be effective whether or not such investigation, litigation or proceeding is
brought by the Borrower, its directors, shareholders or creditors or an Indemnified Party or any
other Person or any Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consunmated. The Borrower agrees not to assert any claim
against the Administrative Agent, any Lender, any of their respective Affrliates, or any of their
respective directors, officers, employees, attorneys and agents, on any theory of liability, for
special, indirect, consequential or punitive damages arising out of or otherwise relating to this
75
Agreement, any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Extensions of Credit. This Section 8.0a@) shall not apply with respect to Taxes
that are lndemnified Taxes, Excluded Taxes or Taxes that are covered by Section 2.15(a)(ii).
(c) If any payment of principal of, or Conversion of, any Eurodollar Rate Revolving
Loan is made by the Borrower to or for the account of a Lender other than on the last day of the
Interest Period for such Revolving Loan, as a result of a payment or Conversion pursuant to Section
2.06(c), 2.07(c), 2.09, 2.12(b), 2.13, 2.14, 2.15 or 2.16, acceleration of the maturity of the
outstanding Borrowings pursuant to Section 6.01, assignment to another Lender upon demand of
the Borrower pursuant to Section 2.20(b) or for any other reason (in the case of any such payment
or Conversion), the Borrower shall, promptly upon demand by such Lender (with a copy of such
demand to the Administrative Agent), pay to the Administrative Agent for the account of such
Lender any amounts required to compensate such Lender for any additional losses, costs or
expenses that it may reasonably incur as a result of such payment or Conversion, including, without
limitation, any loss (other than loss of Applicable Margin), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Loan.
(d) Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower contained in Sections 2.15,2.16,2.19
and 8.04 shall survive the payment in full of principal, interest and all other amounts payable
hereunder.
(e) The Borrower agrees that no Indemnified Party shall have any liability (whether
direct or indirect, in contract or tort or otherwise) to the Borrower or its respective security holders
or creditors related to or arising out of or in connection with this Agreement, the Extensions of
Credit or the use or proposed use of the proceeds thereof any of the transactions contemplated by
any of the foregoing or in the loan documentation and the performance by an Indemnifred Party
by any of the foregoing except to the extent that any loss, claim, damage, liability or expense is
found in a judgment by a court of competent jurisdiction by final and nonappealable judgment to
have resulted from such Indemnified Party's gross negligence or willful misconduct.
(0 In the event that an lndemnified Party is requested or required to appear as a witness
in any action brought by or on behalf of or against the Borrower or any of its Affiliates in which
such Indemnified Party is not named as a defendant, the Borrower agrees to reimburse such
Indemnified Party for all reasonable expenses incurred by it in connection with such Indemnified
Party's appearing and preparing to appear as such a witness, including, without limitation, the fees
and disbursements of its legal counsel.
SECTION 8.05. Right of Set-off'
Upon (i) the occrurence and during the continuance of any Event of Default and (ii) the
making of the request or the granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the outstanding Borrowings due and payable pursuant to the
provisions of Section 6.01, each Lender, each LC Issuing Bank and each of their respective
Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by
Applicable Law, to set off and apply any and all deposits (general or special, time or demand,
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provisional or final, in whatever currency) at any time held, and other obligations (in whatever
currency) at any time owing, by such Lender, such LC Issuing Bank or any such Affiliate, to or
for the credit or the account of the Borrower against any and all of the obligations of the Borrower
now or hereafter existing under this Agreement or any other Loan Document to such Lender, such
LC Issuing Bank or their respective Affiliates, irrespective of whether or not such Lender, such
LC Issuing Bank or such Affiliate shall have made any demand under this Agreement or any other
Loan Document and although such obligations of the Borrower may be contingent or unmatured
or .re owed to a branch, offrce or Affiliate of such Lender, such LC Issuing Bank different from
the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided
that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts
so set off shall be paid over immediately to the Administrative Agent for further application in
accordance with the provisions of Section 2.21 and,pending such payment, shall be segregated by
such Defaulting Lender from its other funds and deemed held in trust for the benefit of the
Administrative Agent, the LC Issuing Banks, and the Lenders, and (y) the Defaulting Lender shall
provide promptly to the Administrative Agent a statement describing in reasonable detail the
obligations of the Borrower owing to such Defaulting Lender as to which it exercised such right
of setoff. The rights of each Lender, each LC Issuing Bank and their respective Affiliates under
this Section are in addition to other rights and remedies (including other rights of setoff) that such
Lender, such LC Issuing Bank or their respective Affiliates may have. Each Lender and each LC
Issuing Bank agrees to notify the Borrower and the Administrative Agent promptly after any such
setoffand application; provided that the failure to give such notice shall not affect the validity of
such setoff and application.
SECTION 8.06. Binding Effecl
This Agreement shall become effective when it shall have been executed by the Borrower
and the Administrative Agent and when the Administrative Agent shall have been notified by each
Initial Lender that such lnitial Lender has executed it and thereafter shall be binding upon and
inure to the benefit of the Borrower, the Administrative Agent each Lender and each LC Issuing
Bank (upon its appointment pursuant to Section 2.04) andtheir respective successors and assigns,
except that the Borrower shall not have the right to assign its rights hereunder or any interest herein
without the prior written consent of all of the Lenders.
SE C TION 8. 0 7. As signments and Participations.
(a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the Administrative Agent, each
Lender and each LC Issuing Bank, and no Lender may assign or otherwise transfer any of its rights
or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection
(b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d)
of this Section, or (iii) by way of pledge or assignment of a security interest subject to the
restrictions of subsection (e) of this Section (and any other attempted assignment or transfer by
any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall
be construed to confer upon any Person (other than the parties hereto, their respective successors
and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section
77
and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative
Agent, the LC Issuing Banks and the Lenders) any legal or equitable right, remedy or claim under
or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees'all or a portion of its rights and obligations under this Agreement (including all or a
portlon of its Commitment and the Loans at the time owing to it); provided that any such
assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the
assigning Lender's Commitment and/or the Loans at the time owing to it or
contemporaneous assignments to related Approved Funds that equal at least the
u111o,n f rp.cified in subsection (bXiXB) of this Section in the aggtegate or in the
case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund,
no minimum amount need be assigned; and
(B) in any case not described in subsection (bXi)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the applicable Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if "Trade
Date" is specified in the Assignment and Assumption, as of the Trade Date) shall
not be less than $5,000,000, or an integral multiple of $1,000,000 in excess thereof,
unless each of the Administrative Agent and, so long as no Default has occurred
and is continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed).
(ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and obligations under
this Agreement with respect to the Loan or the Commiftnent assigned.
(iii) Required Consents. No consent shall be required for any assignment
except to the extent required by subsection (bXiXB) of this Section and, in addition:
(A) the consent of the Borrower (such consent not to be unreasonably
withheld or delayed) shall be required unless (x) an Event of Default has occurred
and is continuing at the time of such assignment, or (y) such assignment is to a
Lender or an Affiliate of a Lender; provided that the Borrower shall be deemed to
have consented to any such assignment unless it shall object thereto by written
notice to the Administrative Agent within ten Business Days after having received
written notice thereof;
(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments if such
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assignment is to a Person that is not a Lender with a Commitment or an Affiliate of
such Lender; and
(c) the consent of each LC Issuing Bank (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment.
(iv) Assignment and Assumption. Theparties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500; provided that the Administrative Agent may, in
its sole discretion, elect to waive such processing and recordation fee in the case of any
assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire.
(v) No Assignment to Certain Persons. No such assignment shall be made to
(A) the Borrower or any of the Borrower's Affiliates (except for any Affiliate of Berkshire
Hathaway not controlled directly or indirectly by the Borrower that is a commercial lender
acquiring rights and obligations under this Agreement in the ordinary course of its
business) or Subsidiaries or (B) to any Defaulting Lender or any of its Subsidiaries, or any
Person who, upon becoming a Lender hereunder, would constifute any of the foregoing
Persons described in this clause (B).
(vi) No Assignment to Natural Persons. No such assignment shall be made to
a natural Person.
(vii) Certain Additional Payments. In connection with any assignment of rights
and obligations of any Defaulting Lender hereunder, no such assignment shall be effective
unless and until, in addition to the other conditions thereto set forth herein, the parties to
the assignment shall make such additional payments to the Administrative Agent in an
aggregate amount sufficient, upon distribution thereof as appropriate (which may be
outright payrnent, purchases by the assignee of participations or subparticipations, or other
compensating actions, including funding, with the consent of the Borrower and the
Administrative Agent, the applicable pro rata share of Loans previously requested but not
funded by the Defaulting Lender, to each of which the applicable assignee and assignor
hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed
by such Defaulting Lender to the Administrative Agent, each LC Issuing Bank and each
other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as
appropriate) its full pro rata share of all Loans and participations in Letters of Credit in
accordance with its Commitment Percentage. Notwithstanding the foregoing, in the event
that any assignment of rights and obligations of any Defaulting Lender hereunder shall
become effective under Applicable Law without compliance with the provisions of this
subsection, then the assignee of such interest shall be deemed to be a Defaulting Lender
for all purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection
(c) of this Section, from and after the effective date specified in each Assignment and Assumption,
the assignee thereunder shall be aparty to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender under this
79
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such esslgnment and Assumftion, be released from its obligations under this Agreement (and, in
the case Jf an Assignment and Assumption covering all of the assigning Lender's rights and
obligations under thir Agr..*ent, such Lender shall cease to be a party hereto) but shall continue
to bJ entitled to the benefits of Sections 2.15,2.18 and 8.04 with respect to facts and circumstances
occurring prior to the effective date of such assignment; provided, that except to the extent
otherwisi ixpressly agreed by the affected parties, no assignment by a Defaulting Lender will
constitute a waiver or rihu*" of any claim of any party hereunder arising from that Lender's having
been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under
this Agreement ihat does not comply with this subsection shall be treated for purposes of this
Agreeirent as a sale by such Lender of a participation in such rights and obligations in accordance
with subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as a non-
fiduciary agent of the Borrower, shall maintain at its address referred to in Section 8.02 a copy of
each Assignment and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitments and Termination Date of, and principal
amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from
time to time (the "Register"). The entries in the Register shall be conclusive absent manifest error,
and the Borroweg the Administrative Agent and the Lenders shall treat each Person whose name
is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement. The Regiiter shall be available for inspection by the Borrower, any LC Issuing
gank ;nd any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Ad-inirtrutive Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrower's Affiliates (except for any Affiliate of Berkshire
Hathaway not controlled directly or indirectly by the Borrower that is a colnmercial lender
acquiring participations under this Agreement in the ordinary course of its business) or
SuUsiaiaiies) (each, a"Participanf') in all or a portion of such Lender's rights and/or obligations
under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it);
providedthai(i) such Lender's obligations under this Agreement shall remain unchanged, (ii) such
iender shall remain solely responsible to the other parties hereto for the performance of such
obligations, and (iii) the Borrower, the Administrative Agent, the LC Issuing Banks and Lenders
shallcontinue to deal solely and directly with such Lender in connection with such Lender's rights
and obligations under this Agreement. For the avoidance of doubt, each Lender shall be
,"rporrri61" for the indemnity under Section 7.07 with respect to any payments made by such
Lender to its Participant(s).
Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in Section 8.01 requiring
the consent of each Lender directly affected thereby that directly affects such Participant. The
Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15,2.I8 and
8.04(c) (subject to the requirements and limitations therein, including the requirements under
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Section 2.18(g) (it being understood that the documentation required under Section 2.18(g) shall
be delivered to the participating Lender or the applicable Withholding Agent to the extent required
by Applicable Law)) to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section; provided that such Participant (A) agrees to
be subject to the provisions of Section 2.20 as if it were an assignee under subsection (b) of this
Section; and (B) shall not be entitled to receive any greater payment under Section 2.15 or 2.18,
with respect to any participation, than its participating Lender would have been entitled to receive.
Each Lender that sells a participation agrees, at the Borrower's request and expense, to use
reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.20(b)
with respect to any Participant. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 8.05 as though it were a Lender; provided that such Participant
agrees to be subject to Section 2.19 as though it were a Lender. Each Lender that sells a
participation shall, acting solely for this pufpose as a non-fiduciary agent of the Bonower, maintain
a register on which it enters the name and address of each Participant and the principal amounts
(and stated interest) of each Participant's interest in the Loans or other obligations under the Loan
Documents (the "Participant Register"); provided that no Lender shall have any obligation to
disclose all or any portion of the Participant Register (including the identity of any Participant or
any information relating to a Participant's interest in any Commitments, Loans, Letters of Credit
or its other obligations under any Loan Document) to any Person except to the extent that such
disclosure is necessary to establish that such Commitment, Loan, Letter of Credit or other
obligation is in registered form under Section 5f.103-1(c) of the United States Treasury
Regulations or to comply with other requirements under applicable tax law. The entries in the
Participant Register shall be conclusive absent manifest error, and such Lender shall treat each
Person whose name is recorded in the Participant Register as the owner of such participation for
all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of
doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no
responsibility for maintaining a Participant Register.
(e) Certain Pledges, Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve Bank or any other
central banking authority; provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 8.08. Conftdentiality.
Neither the Administrative Agent nor any Lender shall disclose any Confidential
lnformation to any other Person without the consent of the Borrower, other than (i) to the
Administrative Agent's or such Lender's Affiliates and their officers, directors, employees, agents
and advisors, to the Administrative Agent or a Lender and, as contemplated by Section 8.07, to
actual or prospective assignees and participants, and then only on a confidential basis, (ii) as
required by any law, rule or regulation or judicial process, (iii) to any rating agency when required
by it, provided, that, prior to any such disclosure, such rating agency, commercial paper dealer or
provider shall undertake to preserve the confidentiality of any Confidential Information received
by it from such Lender, (iv) as requested or required by any state, federal or foreign authority or
examiner regulating banks, banking or other financial institutions, (v) to any direct, indirect, actual
81
or prospective counterparty (and its advisor) to any swap, derivative or securitization transaction
related to the obligations under this Agreement on a confidential basis, (vi) to any credit insurance
provider relating to the Borrower and its obligations on a confidential basis and (vii) pursuant to a
iequest o, ,"qoir"-ent from a regulatory authority (governmental or non-governmental self-
regulatory urfho.ity; having jurisdiction over a Lender; provided that unless prohibited by
Applicable Law, each Lender and the Administrative Agent agree, prior to disclosure thereof, to
"otify the Borrower of any request for disclosure of any such Confidential Information (x) by any
Govimmental Authority or representative thereof (other than any such request in connection with
an examination of such Lender or the Administrative Agent by such Governmental Authority) or
(y) pursuant to legal process.
SECTION 8.09. Governing Law.
EACH LOAN DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING
SECTION 5.1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD
REQUIRE APPLICATION OF ANOTHER LAW.
SECTION 8.10. Severahility.
In the event any one or more of the provisions contained in this Agreement should be held
invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or impaired hereby.
SECTION 8.11. Execution in Counterparts.
This Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed to be an original
and all of wtrictr taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page to this Agreement by telecopier or other electronic
transmission (including by e-mail with a PDF attachment of an executed counterpart) shall be
effective as delivery of an original executed counterpart of this Agreement.
SECTION 8.12. Jurisdiction, Etc.
(a) Each party hereto hereby irrevocably and unconditionally agrees that it will not
cornmence any action, litigation orproceeding of any kind or description, whether in law or equity,
whether in contract or in tort or otherwise, against the Administrative Agent, any Lender, any LC
Issuing Bank, or any Related Party of the foregoing in any way relating to this Agreement or any
other Loan Document or the transactions relating hereto or thereto, in any forum other than the
courts of the State of New York sitting in the Borough of Manhattan inNew York City, and of the
United States District Court of the Southern District of New York sitting in the Borough of
Manhattan in New York City, and any appellate court from any thereof, and each of the parties
hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that
all claims in respect of any such action, litigation or proceeding may be heard and determined in
such New York State court or, to the fullest extent permitted by applicable law, in such federal
court. Each party hereto agrees that a final judgment in any such action, litigation or proceeding
82
shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law.
(b) The Borrower irrevocably and unconditionally waives, to the fullest extent
permitted by Applicable Law, any objection that it may now or hereafter have to the laying of
venue of any action or proceeding arising out of or relating to this Agreement or any other loan
Document in any court referred to in paragraph (a) of this Section. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by applicable law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.
(c) Each party hereto irrevocably consents to service of process in the manner provided
for notices in Section 8.02. Nothing in this Agreement will affect the right of any party hereto to
serve process in any other manner permitted by Applicable Law.
SECTION 8.13. lYaiver of Jury Trial.
EACH PARTY HERETO HEREBY IRREVOCABLY WATVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY) OR THE ACTIONS OF THE
ADMINISTRATME AGENT, ANY LC ISSUING BANK, THE BORROWER OR ANY
LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR
ENFORCEMENT THEREOF. TO THE EXTENT THEY MAY LEGALLY DO SO,
BORROWER, THE ADMINISTRATTVE AGENT, THE LC ISSUING BANKS AND THE
LENDERS HEREBY AGREE THAT ANY SUCH CLAIM, DEMAND, ACTION, CAUSE OF
ACTION, OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A
ruRY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE OTHER PARTY OR PARTIES HERETO TO WAIVER OF ITS OR THEIR
RIGHT TO TRIAL BY JURY. EACH PARTY HERETO (i) CERTIFIES THAT NO
REPRESENTATryE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER
AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAMERS AND CERTIFICATIONS IN THIS
SECTION.
SECTION 8.14. USA Patriot AcL
Each Lender that is subject to the Patriot Act and the Administrative Agent (for itself and
not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the
USA PatriotAct (Title III ofPub. L.107-56 (signedinto law as ofoctober26,200l)) (as amended,
restated, modified or otherwise supplemented from time to time, the "Patriot Acr"), it is required
to obtain, verify and record information that identifies the Borrower, which information includes
83
the name and address of the Borrower and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify the Borrower in accordance with the Patriot Act.
The Borrower shall, and shall cause each of its Subsidiaries to, provide to the extent commercially
reasonable, such information and take such actions as are reasonably requested by the
Administrative Agent or any Lender in order to assist the Administrative Agent and the Lenders
in maintaining compliance with the Patiot Act.
SECTION 8.15. No Fiduciary DutY.
The Credit Parties and their respective Affiliates (collectively, solely for purposes of this
Section, the "Lender Parties"), may have economic interests that conflict with those of the
Borrower, its securities holders and/or their Affiliates. The Borrower agrees that nothing in the
Loan Documents or the Related Documents will be deemed to create an advisory, fiduciary or
agency relationship or fiduciary or other implied duty between any Lender Party, on the one hand,
and the Borrower, its securities holders or its Affiliates, on the other hand. The Borrower
acknowledges and agrees that (i) the ffansactions contemplated by the Loan Documents and the
Related Documents (including the exercise of rights and remedies hereunder and thereunder) are
arm's-length commercial transactions between the Lender Parties, on the one hand, and the
Borrower, on the other, and (ii) in connection therewith and with the process leading thereto, (x)
no Lender Party has assumed an advisory or fiduciary responsibility in favor of the Borrower, its
securities holders or its Affiliates with respect to the transactions contemplated hereby (or the
exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of
whether any Lender Party has advised, is currently advising or will advise the Borrower, its
securities holders or its Affiliates on other matters), and (y) each Lender Party is acting solely as
principal hereunder and under the other Loan Documents and the Related Documents and not as
the agent or fiduciary of the Borrower, its management, securities holders or creditors. The
Borrower acknowledges and agrees that it has consulted its own legal and financial advisors to the
extent it deemed appropriate and that it is responsible for making its own independent judgment
with respect to such transactions and the process leading thereto. The Borrower agrees that it will
not claim that any Lender Party has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Borrower, in connection with the transactions contemplated by the
Loan Documents or the Related Documents or the process leading thereto.
SECTION 8.16, Acknowledgement and Consent to Bail-In of EEA Financial
Institutions.
Not'withstanding anything to the contrary in any Loan Document or in any other agreement,
arrangement or understanding among any such parties, each party hereto acknowledges that any
liability of any EEA Financial Institution arising under any Loan Document may be subject to the
write-down and conversion powers of an EEA Resolution Authority and agrees and consents to,
and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by an EEA
Resolution Authority to any such liabilities arising hereunder which may be payable to it by any
party hereto that is an EEA Financial lnstitution; and
84
(b) the effects of any Bail-In Action on any such liability, including, if
applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other
instruments of ownership in such EEA Financial lnstitution, its parent entity, or a bridge
institution that may be issued to it or otherwise conferred on it, and that such shares or
other instruments of ownership will be accepted by it in lieu of any rights with respect to
any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of
the write-down and conversion powers of any EEA Resolution Authority.
SECTION 8.17. Novation; Reaffirmation.
The Borrower agrees that this Agreement amends and restates and is substituted for (and
is not executed in novation of) the Existing Credit Agreement and that the outstanding obligations
of the Borrower under the Existing Credit Agreement (as well as any new obligations incurred on
the Closing Date) are now evidenced by this Agreement. All "Loans" and o'Borrowings" made
and other obligations incurred under (and as defined in) the Existing Credit Agreement which
remain outstanding on the Closing Date shall continue as L,oans, Borrowings and other obligations
under (and shall be governed by the terms of) this Agreement and the other Loan Documents and
the Borrower hereby reaffrms all such obligations after giving effect to the amendment and
restatement of the Existing Credit Agreement pursuant to this Agreement.
SECTION 8.18. Certain ERISA Matters.
(a) Each Lender (x) represents and warrants, as of the date such Person became a
Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto
to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative
Agent and each Joint Lead Arranger and their respective Affiliates, and not, for the avoidance of
doubt, to or for the benefit of the Borrower, that at least one of the following is and will be true:
(i) such Lender is not using "plan assets" (within the meaning of 29 CFR
$2510.3-101, as modified by Section 3@2) of ERISA) of one or more Benefit Plans in
connection with the Loans, the Letters of Credit or the Commitments,
(ii) the transaction exemption set fonh in ore or more PTEs, such as PTE84-14(a class exemption for certain transactions determined by independent qualified
professional asset managers), PTE 95-60 (a class exemption for certain transactions
involving insurance company general accounts), PTE 90-l (a class exemption for certain
transactions involving insurance company pooled separate accounts), PTE 91-38 (a class
exemption for certain transactions involving bank collective investment funds) or PTE 96-
23 (a class exemption for certain transactions determined by in-house asset managers), is
applicable with respect to such Lender's entrance into, participation in, administration of
and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
85
(iii) (A) such Lender is an investment fund managed by a "Qualified
Professional Asset Manager" (within the meaning of Pan VI of PTE 84-14), (B) such
Qualifred Professional Asset Manager made the investnent decision on behalf of such
Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit,
the Commitments and this Agreement, (C) the entrance into, participation in,
administration of and performance of the Loans, the Letters of Credit, the Commitments
and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of
PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection
(a) of Part I of PTE 84-14 are satisfied with respect to such Lender's entrance into,
participation in, administration of and performance of the Loans, the Letters of Credit, the
Commitments and this Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in
writing between the Adminisffative Agent, in its sole discretion, and such Lender.
(b) ln addition, unless sub-clause (i) in the immediately preceding clause (a) is true
with respect to a Lender or such Lender has not provided another representation, watranty and
covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender
further (x) represents and walrants, as of the date such Person became a Lender party hereto, to,
and (y) covenants, from the date such Person became a Lender party hereto to the date such Person
,"ur.r being a Lender party hereto, for the benefit of, the Administrative Agent and each Joint
Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the
benefit of the Borrower, that:
(i) none ofthe Administrative Agent or any Joint Lead Arranger or any of their
respective Affiliates is a fiduciary with respect to the assets of such Lender (including in
connection with the reservation or exercise of any rights by the Administrative Agent under
this Agreement, any Loan Document or any documents related to hereto or thereto),
(ii) the Person making the investment decision on behalf of such Lender with
respect to the entrance into, participation in, administration of and performance of the
Loans, the Letters of Credit, the Commifinents and this Agreement is independent (within
the meaning of 29 CFR $ 2510.3-2L) and is a bank, an insurance carrier, an investment
adviser, a broker-dealer or other person that holds, or has under management or control,
total assets of at least $50 million, in each case as described in 29 CFR $ 2510.3-
2l(cXlXiXA)-(E),
(iii) the Person making the investnnent decision on behalf of such Lender with
respect to the entrance into, participation in, administration of and performance of the
Loans, the Letters of Credit, the Commitments and this Agreement is capable of evaluating
investment risks independently, both in general and with regard to particular transactions
and investment strategies (including in respect of the obligations of the Borrower under
this Agreement or any other Loan Document),
(iv) the Person making the investment decision on behalf of such Lender with
respect to the entrance into, participation in, administration of and performance of the
Loans, the Letters of Credit, the Commitments and this Agreement is a fiduciary under
86
ERISA or the Intemal Revenue Code, or both, with respect to the Loans, the Letters of
Credit, the Commitments and this Agreement and is responsible for exercising independent
judgment in evaluating the transactions hereunder, and
(v) no fee or other compensation is being paid directly to the Administrative
Agent or any Joint Lead Arranger or any their respective Affiliates for investment advice
(as opposed to other services) in connection with the Loans, the Letters of Credit, the
Commitments or this Agreement.
(c) The Administrative Agent and each Joint Lead Arranger hereby informs the
Lenders that each such Person is not undertaking to provide impartial investment advice, or to give
advice in a fiduciary capacity, in connection with the tansactions contemplated hereby, and that
such Person has a financial interest in the transactions contemplated hereby in that such Person or
an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters
of Credit, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans,
the Letters of Credit or the Commihnents for an amount less than the amount being paid for an
interest in the Loans, the Letters of Credit or the Commitments by such Lender or (iii) may receive
fees or other payments in connection with the transactions contemplated hereby, the Loan
Documents or otherwise, including strucfuring fees, commitment fees, arrangement fees, facility
fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral
agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or
alternate transaction fees, amendment fees, processing fees, term out premiums, banker's
acceptance fees, breakage or other early termination fees or fees similar to the foregoing.
[Remainder ofpage intentionally left blank.]
PACIFICORP,
as Borrower
By /s/ Nikki L Kobliha
Nikki L. Kobliha
Vice President, Chief Financial Officer and
Treasurer
Signature Page to PacifiCorp I Credit Agreement
JPMORGAII CIIASE BAI\IK, N.A.,
as Administrative Agent, lrnder and LC Issuing
Bank
By /s/ -Iuan .Iavellane
Name: Juan Javellana
Title: Executive Director
Signature Page to PacifiCorp I Credit Agreement
LEI\DERS:
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Lender
By /s/ Greeory R. Gredvie
Name: GregoryR. Gredvig
Title: Director
Signature Page to PacifiCorp I Credit Agreement
MUFG T NION BANK, N.A., as Lender and LC
Issuing Bank
By /s/ Jeffrev Flaoo
Name: Jeffrey Flagg
Title: Director
Signature Page to PacifiCorp I Credit Agreement
MIZUHO BANK, LTD., as Lender
By lsl A DeMasistris
Name: Donna DeMagistris
Title: Authorized Signatory
Sigrrature Page to PacifiCorp I Credit Agreement
CITIBANK, N.A., as Lender
By /s/ Richard Rivera
Name: Richard Rivera
Title: Vice President
Sigrrature Page to PacifiCorp I Credit Agreement
U.S. BANK NATIONAL ASSOCIATION, as
Lender
By /si Eric Cosrove
Name: Eric Cosgrove
Title: Senior Vice President
Signature Page to PacifiCorp I Credit Agreement
BARCLAYS BANKPLC, as Lender
By /V Svdnev G. Dennis
Name: Sydney G. Dennis
Title: Director
Signature Page to PacifiCorp I Credit Agreement
BNP PARIBAS, as Lender
By /s/ Denis O'Meara
By
Name: Denis O'Meara
Title: Managing Director
/s/ Karima Omar
Name: Karima Omar
Title: Vice President
Sigralure Page to PacifiCorp I Credit Agreement
THE BANK OF NOVA SCOTIA, as Lender
By /s/ David Dewar
Name: David Dewar
Title: Director
Sigrature Page to PacifiCorp I Credit Agreement
ROYAL BANK OF CANADA, as Lender
By /s/ Justin Painter
Name: Justin Painter
Title: Authorized Signatory
Sigrature Page to PacifiCorp I Credit Agreoment
SUMITOMO MITSUI BANKING
CORPORATION, as Lender
By /s/ Kafsrnnrlri Krrhn
Name: Katsuyuki Kubo
Title: Managing Director
Signature Page to PacifiCorp I Credit Agreement
BANK OF MONTREAL, CHICAGO BRANCH,
as l,ender
By /s/ Brian Banke
Name: Brian Banke
Title: Managing Director
Signature Page to PacifiCorp I Credit Agreement
CoBanlc ACB, as Lender
By /s/ John H. KemDer
Name: John H. Kemper
Title: Vice President
Signature Page to PacifiCorp I Credit Agreement
The Bank ofNew York Mellon, as knder
By /V RichardK.^Ir-
Name: Richard K. Fronapfel, Jr.
Title: Director
Sipature Page to PacifiCorp I Credit Agree,ment
TD Bank, N.A., as Lender
By /s/ Viiav Prasad
Name: Vrjay Prasad
Title: Senior Vice President
Signature Page to PacifrCorp I Credit Agreement
KeyBank National Association, as Lender
By /s/ Beniamin C
Name: Benjamin C Cooper
Title: Vice President
Signature Page to PacifiCorp I Credit Agreement
SUNTRUST BANK as Lender
By /V Yann Pirio
Name: Yann Pirio
Title: Managing Director
Signature Page to PacifiCorp I Credit Agreement
CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK BRANCH, as Lender
By /s/ Robert Casev
Name: Robert Casey
Title: Authorized Signatory
By /s/ Gordon R. Eadon
Name: Gordon R. Eadon
Title: Authorized Signatory
Sigrature Page to PacifiCorp I Credit Agreement
PNC BANK NATIONAL ASSOCIATION, as
Lender
By /s/ Madeline L. Pleskovic
Name: Madeline L. Pleskovic
Title: Vice President
Sipature Page to PacifiCorp I Credit Agreement
BANCO SANTANDE& S.A., NEW YORK
BRANCH, as Lender
By /s/ Rita
Name: Rita Walz-Cuccioli
Title: Executive Director
By /3/ Tere,nce Corcoran
Name: Terence Corcoran
Title: Executive Director
Signature Page to PacifiCorp 1 Qpdll fuleement
National Australia Bank Limited, as Lender
By /s/ F.li l)avis
Name: Eli Davis
Tifle: Associate Director
Signature Page to PacifiCorp I Credit Agreement
The Northern Trust Compann as Lender
By /s/ Iisa
Name: Lisa Ddristofaro
Tifle: SVP
Signature Page to PaoifiCorp I Credit Agreement
NATIONAL COOPERATTVE SERVICES
CORPORATION, as Lender
By /s/ Ann Shankroff
Name: Ann Shanlaoff
Title: Assistant Secretary-Treasurer
Signature Page to PacifiCorp I Credit Agreement
EXHIBIT A
(to the Credit Agreement)
FORM OF NOTICE OF BORROWING
A-2
EXHIBIT B
(to the Credit Agreement)
FORM OF REQUEST FOR ISSUANCE
JPMorgan Chase Bank, N.A., as Administrative Agent
for the Lenders party
to the Credit Agreement
referred to below
Attention: Letter of Credit Department
[ ], as LC Issuing Bank
IDate]
Ladies and Gentlemen:
The undersigned, PacifiCorp, refers to the Amended and Restated Credit Agreement, dated
as of April30,2018 (as further amended or modified from time to time, the"Credit Agreement,"
the terms defined therein being used herein as therein defined), among the undersigned, certain
Lenders and LC Issuing Banks party thereto, and JPMorgan Chase Bank, N.A., as Administrative
Agent, and hereby givJs you rroti"" pursuant to Section 2.Oa@) of the Credit Agreement that the
uridersigned hereby requists the issuance of a Letter of Credit (the "Requested Letter of Credif')
in accordance with the following terms:
(i) the LC Issuing Bank is
(ii) the requested date of [issuance] [extension] [
the Requested Letter of Credit (which is a Business Day) is
modificationl [amendment] of
(iii) the expiration date of the Requested Letter of Credit requested hereby is
.l
(iv) the proposed stated amount of the Requested Letter of Credit is
2
(v)
an address at
the beneficiary of the Requested Letter of Credit is
and
hich a drawing may be made under the Requested
with
(vi) the conditions under w
Letter of Credit are as follows:and
I
2
(vii)any other additional conditions are as follows:
Date may not be later than the fifth Business Day preceding the Termination Date.
Must be minimum of $100,000.
B-2
The undersigned hereby certifies that the following statements are true on the date hereof
and will be true on the date of the [issuance] [extension] [modifrcation] [amendment] of the
Requested Letter of Credit:
(A) the representations and warranties contained in Section 4.01 of the Credit
Agreement (other than the representations and warranties in the first sentence of Section 4.01(g),
in Section 4.01(D and in the first sentence of Section a.01(n)) are true and correct in all material
respects on and as of the date hereof before and after giving effect to the [issuance] [extension]
[modification] [amendment] of the Requested Letter of Credit and to the application of the
proceeds therefrom, as though made on and as of the date hereof; and
(B) no event has occurred and is continuing, or would result from the [issuance]
[extension] [modification] [amendment] of the Requested Letter of Credit or from the application
of the proceeds therefrom, that constitutes a Default.
[The undersigned hereby further certifies that, on the date of the issuance of the Requested
Letter of Credit, the conditions precedent set forth in Section 3.03 of the Credit Agreement will be
satisfied.l3
PACIFICORP
By
Name:
Title:
Consented to as of the datea
first above written:
[NAME OF LETTER OF CREDIT BENEFICIARY]
Name:
Title:
4
Necessary only for issuance of a Bond Letter of Credit
Necessary only for modification or amendment
EXHIBIT C
(to the Credit Agreement)
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the"Assignment and Assumption") is dated as
of the Effective Date sei forth below and is entered into by and between [the][each]t Assignor
identified in item 1 below ([the][each, anf "Assignof') and [the][each]2 Assignee identified in item
2 below ([the][each, an)"Assigned'). llt is understood and agreed that the rights and obligations
of [the Assignors][the AssignJes]3 hereunder are several and not joint.]a Capitalized terms used
buinot defrned herein shallhave the meanings given to them in the Credit Agreement identified
below (as amende d, the " Credit Agreemenf'), receipt of a copy of which is hereby acknowledged
by [the][each] Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto
aie hereby agreed to and incorporated herein by reference and made a part of this Assignment and
Assumption as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and
assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably
purc-hases and assumes from [the Assignor][the respective Assignors], subject to and in accordance
with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date
inserted by the Administrative Agent as contemplated below (i) all of [the Assignor's][the
respective Assignors'l rights and obligations in [its capacity as a Lender][their respective
capacities as Lenders] under the Credit Agreement and any other documents or instruments
deiivered pursuant thereto to the extent related to the amount and percentage interest identified
below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors]
under the respective facilities identified below (including without limitation any letters of credit
and guarantees included in such facilities), and (ii) to the extent permitted to be assigned under
appltable law, all claims, suits, causes of action and any other right of [the Assignor (in its
capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against
arry Person, whether known or unknown, arising under or in connection with the Credit Agreement,
any other documents or instruments delivered pursuant thereto or the loan transactions governed
thireby or in any way based on or related to any of the foregoing, including, but not limited to,
contrait claims, tort claims, malpractice claims, statutory claims and all other claims at law or in
equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights
and obligations sold and assigned by tthelfany] Assignor to [the][any] Assignee pursuant to
clauses 6 *d (ii) above being referred to herein collectively as [the][an] "Assigned Interesf').
Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly
1 For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single
Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the
second bracketed language.
2 For bracketed language here and elsewhere in this form relating to the Assignee(s), ifthe assignment is to a single
Assignee, choose the first bracketed language. Ifthe assignment is to multiple Assignees, choose the second
bracketed language.
3 Select as appropriate.4Include bracketed language if there are either multiple Assignors or multiple Assignees.
c-2
provided in this Assignment and Assumption, without representation or warranty by [the][any]Assignor.
1. Assignor[s]
[Assignor [is] [is not] a Defaulting Lenderl
2. Assignee[s]:
Ifor each Assignee, indicate [Affiliate][Approved Fund] of lidentify Lenderll
3. Borrower(s):PacifiCorp
4.
5 Credit Agreement:The $600,000,000 Amended and Restated Credit Agreement dated
as of April30, 2018 among PacifiCorp, the Lenders parties thereto,
JPMorgan Chase Bank, N.A., as Administrative Agent, and the LC
Issuing Banks parties thereto
Administrative Agent: JPMorgan Chase Bank, N.A., as the administrative agent under
the Credit Agreement
6. Assigned Interest[s]
[7. Trade Date:l'0
[Page break]
5 List each Assignor, as appropriate.
6 List each Assignee, as appropriate.
7 Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned
^ under this Assignment (e.g., "Revolving Credit Commitment,,, etc.)8 Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the
Trade Date and the Effective Date.
e Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.r0 To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to be
determined as of the Trade Date.
Assignor[s]s Assignee[s]6
Facility
AssignedT
Aggregate Amount of
Commitnnent/Loans for
all [,enders8
Amormt of
Commitnent/Loans
Assigned8
Percentage
Assigned of
Commitnent/
Loanse
CUSIP
Number
$$%
$$o/o
$$%
Effective Date: _, 20- ITO BE INSERTED BY ADMINISTRATIVE
AGENT AND WHICH SHALL gE THB EFFECTIVE DATE OF RECORDATION OF
TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNORISI''
INAME OF ASSIGNORI
c-3
Title:
TNAME OF ASSIGNORI
Title:
ASSIGNEEISlt2
INAME OF ASSIGNEE]
Title:
INAME OF ASSIGNEE]
Title:
tl Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if
applicable).
12 Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if
applicable).
By
By
c-4
[Consented to and]13 Accepted:
JPMORGAN CHASE BANK, N.A., AS
Administrative Agent
Title:
[Consented to:]ra
[NAME OF RELEVANT PARTY]
Title:
13 To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.ra To be added only if the consent of the Borrower and,/or other parties (e.g. LC Issuing Bank) is required by the terms
of the Credit Agreement.
ANNEX 1
$600,000,000 Amended and Restated Credit Agreement, dated as of April 30, 2018, among
PacifiCorp, the Lenders parties thereto, JPMorgan Chase Banh N.A., as Administrative Agent,
and the LC Issuing Banks parties thereto
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. RepresentationsandWsrranties.
1.1 Assignor[s]. [The][Each] Assignor (a) represents and warrants that (i) it is
the legal and beneficial owner of [the]lthe relevant] Assigned Interest, (ii) [the][such]
Assigned lnterest is free and clear of any lien, encumbrance or other adverse claim, (iii) it
has full power and authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated hereby and
(iv) i1 is [not] a Defaulting Lender; and (b) assumes no responsibility with respect to (i)
any statements, wa:ranties or representations made in or in connection with the Credit
Agreement or arLy other Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates
or any other Person obligated in respect of any Loan Document, or (iv) the performance or
observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of
any of their respective obligations under any Loan Document.
1.2. Assignee[sJ. [The][Each] Assignee (a) represents and warrants that (i) it
has fulIpower and authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated hereby and
to beiome a Lender under the Credit Agreement, (ii) it meets all the requirements to be an
assignee under Section 8.07(bxiii), (v) and (vi) of the Credit Agreement (subject to such
consents, if any, as may be required under Section 8.07(bxiii) of the Credit Agreement),
(iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned
Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with
respect to decisions to acquire assets of the tlpe represented by the Assigned Interest and
either it, or the Person exercising discretion in making its decision to acquire the Assigned
Interest, is experienced in acquiring assets ofsuch type, (v) it has received a copy ofthe
Credit Agreement, and has received or has been accorded the opportunity to receive copies
of the most recent financial statements delivered pursuant to clauses (i) and (ii) of Section
5.01(h) thereof, as applicable, and such other documents and information as it deems
appropriate to make its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and
withoui reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase [the][such]
Assigned lnterest, and (vii) attached to the Assignment and Assumption is any
documentation required to be delivered by it pursuant to the terms of the Credit Agreement,
duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will,
independently and without reliance on the Administrative Agent, [the][any] Assignor or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, and (ii) it will perform in accordance with their terms
all of the obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.
2. Paymenls. From and after the Effective Date, the Administrative Agent shall make all
payments in respect of [the][each] Assigned Interest (including payments of principal, interest,
fees and other amounts) to [the][the relevant] Assignee whether such amounts have accrued prior
to, on or after the Effective Date. The Assignor[s] and the Assignee[s] shall make all appropriate
adjustments in payments by the Administrative Agent for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves. Notwithstanding the
foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts
paid or payable in kind from and after the Effective Date to [the][the relevant] Assignee.
3. General Provisions. This Assignment and Assumption shall be binding upon, and inure
to the benefit of, the parties hereto and their respective successors and assigns. This Assignment
and Assumption may be executed in any number of counterparts, which together shall constitute
one instrument. Delivery of an executed counterpart of a signature page of this Assignment and
Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption. This Assignment and Assumption shall be governed by, and
construed in accordance with, the law of the State ofNew York.
EXHIBIT F.l
(to the Credit Agreement)
IFoRM OFI
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Amended and Restated Credit Agreement, dated as of
April 30, 2018 (as further amended, supplemented or otherwise modified from time to time, the
"iredit Agreemenf'),among PacifiCorp (the "Boruoweru),the Lenders party thereto from time to
time, JPMorgan Chase Bank, N.A., as Administrative Agent and the LC Issuing Banks party
thereto from time to time.
Pursuant to the provisions of Section 2. 1 8 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any promissory
note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a
bank within the meaning of Section 831(oX3XA) of the Internal Revenue Code, (iii) it is not a ten
percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Internal
Revenue Code and (iv) it is not a controlled foreign corporation related to the Borrower as
described in Section 881(c)(3XC) of the Lrternal Revenue Code.
The undersigned has furnished the Administrative Agent and the Borrower with a
certificate of its non-U.S. Person status on IRS Form W-8BEN-E or IRS Form W-8BEN. By
executing this certificate, the undersigned agrees that (l) if the information provided on this
certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative
Agent, and (2) the undersigned shall have at all times furnished the Borrower and the
Administrative Agent with a properly completed and currently effective certificate in either the
calendar year in which each payment is to be made to the undersigned, or in either of the two
calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
INAME OF LENDERI
Name:
Title:
Date:_,201 I
By:
EXHIBIT F.2
(to the Credit Agreement)
IFoRM OFI
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax
Purposes)
Reference is hereby made to the Amended and Restated Credit Agreement, dated as ofApril 30, 2018 (as further amended, supplemented or otherwise modified from time to time, the
"Credit Agreemenf'), among PacifiCorp (the"Boruower"),the Lenders party thereto from time to
time, JPMorgan Chase Bank, N.A., as Administrative Agent and the LC Issuing Banks party
thereto from time to time.
Pursuant to the provisions of Section 2.18 ofthe Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it
is providing this certificate, (ii) it is not a bank within the meaning of Section 881(oX3XA) of the
Internal Revenue Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning
of Section 871(h)(3XB) of the Internal Revenue Code, and (iv) it is not a controlled foreign
corporation related to the Borrower as described in Section 8S1(c)(3XC) of the lnternal Revenue
Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S.
Person status on IRS Form W-8BEN-E or IRS Form W-8BEN. By executing this certificate, the
undersigned agrees that (1) ifthe informationprovided on this certificate changes, the undersigned
shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times
furnished such Lender with a properly completed and currently effective certificate in either the
calendar year in which each payment is to be made to the undersigned, or in either of the two
calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
INAME OF PARTICIPANT]
By:
Name:
Title:
Date: _ _,201 I
EXHIBIT F.3
(to the Credit Agreement)
IFoRM OFI
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Amended and Restated Credit Agreement, dated as of
April 30, 2018 (as further amended, supplemented or otherwise modified from time to time, the
"bredit Agreemenf'),among PacifiCorp (the "Borroweru),the Lenders party thereto from time to
time, JPMorgan Chase Bank, N.A., as Administrative Agent and the LC Issuing Banks party
thereto from time to time.
Pursuant to the provisions of Section 2. 1 8 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record owner of the participation in respect of which it is providing
this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such
participation, (iii) with respect such participation, neither the undersigned nor any of its direct or
indirecl partners/members is a bank extending credit pursuant to a loan agreement entered into in
the ordinary cogrse of its trade or business within the meaning of Section 881(c)(3)(A) of the
Internal Revenue Code, (iv) none of its direct or indirect partners/members is a ten percent
shareholder of the Borrower within the meaning of Section 871(hX3)(B) of the Internal Revenue
Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation
related to the Borrower as described in Section 881(cX3XC) of the Internal Revenue Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY
accompanied by one of the following forms from each of its partners/members that is claiming the
portfolio interest exemption: (i) an IRS Form W-8BEN-E or IRS Form W-8BEN or (ii) an IRS
Form W-8IMY accompanied by an IRS Form W-8BEN-E or IRS Form W-8BEN from each of
such partner's/member's beneficial owners that is claiming the portfolio interest exemption. By
executing this certificate, the undersigned agrees that (1) if the information provided on this
certificati changes, the undersigned shall promptly so inform such Lender and (2) the undersigned
shall have at all times furnished such Lender with a properly completed and currently effective
certificate in either the calendar year in which each payment is to be made to the undersigned, or
in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
INAME OF PARTICIPANT]
By:
Name:
Title:
Date:_ _,201 l
EXHIBIT F.4
(to the Credit Agreement)
IFoRM OFI
U.S. TAX COMPLIAIICE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Amended and Restated Credit Agreement, dated as of
April 30, 2018 (as further amended, supplemented or otherwise modified from time to time, the
"Credit Agreemenf'), among PacifiCorp (the "Borronter"),the Lenders party thereto from time to
time, JPMorgan Chase Bank, N.A., as Administrative Agent and the LC Issuing Banks party
thereto from time to time.
Pursuant to the provisions of Section 2.18 ofthe Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record owner of the Loan(s) (as well as any promissory note(s)
evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect
partners/members are the sole beneficial owners of such Loan(s) (as well as anypromissorynote(s)
evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit
Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect
partners/members is a bank extending credit pursuant to a loan agreement entered into in the
ordinary course of its trade or business within the meaning of Section 8S1(c)(3)(A) of the Internal
Revenue Code, (iv) none of its direct or indirect parbrers/members is a ten percent shareholder of
the Borrower within the meaning of Section 871(hX3XB) of the Internal Revenue Code and (v)
none of its dfuect or indirect partners/members is a controlled foreign corporation related to the
Borrower as described in Section 881(c)(3)(c) of the Internal Revenue code.
The undersigned has furnished the Administrative Agent and the Borrower with IRS Form
W-8IMY accompanied by one of the following forms from each of its partners/members that is
claiming the portfolio interest exemption: (i) an IRS Form W-8BEN-E or IRS Form W-8BEN or
(ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN-E or IRS Form W-8BEN from
each of such partner's/member's beneficial owners that is claiming the portfolio interest
exemption. By executing this certificate, the undersigned agrees that (1) if the information
provided on this certificate changes, the undersigned shall promptly so inform the Borrower and
the Adminisfrative Agent, and (2) the undersigned shall have at all times furnished the Borrower
and the Administrative Agent with a properly completed and currently effective certificate in either
the calendar year in which each payment is to be made to the undersigned, or in either of the two
calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have flt" msanings given to them in the Credit Agreement.
INAME OF LENDER]
Name:
Title:
Date: _ _,201 7
By:
SCHEDULE I
LIST OF COMMITMENT AMOUNTS AND APPLICABLE LENDING OFFICES
PACIFICORP
U.S. $600,000,000 Amended and Restated Credit Agreement
Name of Bank Commitment
Amount
Domestic
Lending Offrce
Eurodollar
Lendins
Office
JPMorgan Chase
Bank, N.A.
$36,812,109.56 500 Stanton Christiana Road, Ops 2 Floor 3
Newark, Delaware 197 13-2107
Contact: Juan Javellana
Phone: (212)2704272
Email : iuan j j avellana@jpmorean.com
Group Email : na cpe@jomorsan.com
Same as
Domestic
Lending
Office
Wells Fargo Bank,
National
Association
$36,812,108.56 90 S. 7e Street
MAC: N9305-06c
Minneapolis, MN 55402
Contact: Greg Gredvie
Phone: (612) 6674832
Fax : (612) 316-0506
Email : prregory.r. eredvie@wellsfareo.com
Group Email:
RKElClNSVPavments@wellsfarso.com
Same as
Domestic
Lending
Office
MUFG Union
Bank, N.A.
$36,812,108.56 445 South Figueroa Street, l5th Floor
Los Angeles, California 90071
Contact: Jeffrev Flass
Phone: (213)236-6911
Email: jflagg@us.mufgjp
Group Email #CLOSYND@unionbank.com
Same as
Domestic
Lending
Office
Mizuho Bank,
Ltd.
$36,812,108.56 1251 Avenue of the Americas
New York, New York 10020
Contact: Edwin Stone
Phone: (212)282-3269
Fax: (212) 282-4488
Email: edwin.stone@mizuhocbus.com
Group Email:
LAU USCom3@mizuhocbus.com
Same as
Domestic
Lending
Office
t-2
Name of Bank Commitment
Amount
Domestic
Lendine Offlce
Eurodollar
Lendins
Office
Citibank, N.A.$36,812,108.56 3glParkAvenue, 16ft Floor 5
NewYork,NewYork 10043
Contact: Loan Administration
Phone: (302)894-6052
Fax: (212) 994-0847
Email: GlOrisinationOps@citi.com
Same as
Domestic
Lending
Ofiice
U.S. Bank
National
Association
$36,812,108.56 800 Nicollet Mall
Minneapolis, Minnesota 55402
Contact Holland H. Williams
Phone: (208) 383-7565
Fax: (208) 383-7489
Email:
hollandhuf frnan.williams
Same as
Domestic
Lending
Office
Barclays Bank
PLC
$36,812,108.56 745 SeventhAvenue,24lJ,.FL
NewYork,NewYork 10019
Contact: Charlie Goetz
Phone: (212) 5264454
Email : charlie. eoetz@barclays.com
Group Email:
xraUSloanOos4@Barclavs. com
Same as
Domestic
Lending
Office
BNP Paribas $25,529,436.33 787 Seventh Avenue
New York, New York 10019
Contact: Denis O'Meara
Phone: (212)471-8108
Fax: (212) 841-2745
Email:
denis.omeara@americas.bnpparibas. com
Same as
Domestic
Lending
Office
The Bank of Nova
Scotia
$25,529,436.33 720 Yirl;g Street W-2nd floor, Toronto,
Ontario, Canada M5V 2T3
Primary Contact: Priyanka Rao
Secondarv Contact: Jamie Breese
Phone: (212)225-5705
Fax: (212) 225-5709
Email:
GWSUSCoTp LoanOps@scotiabank.com
Same as
Domestic
Lending
Office
I-3
Name of Bank Commitment
Amount
Domestic
Lending Offrce
Eurodollar
Lendine
OfIice
Royal Bank of
Canada
s25,529,436.33 Three World Financial Center
New York, New York 10281
Contact: Rahul Shah
Phone: (212) 858-6053
Fax: (212) 428-6201
Email: rahul .shah(@rbccm.com
Same as
Domestic
Lending
Office
Sumitomo Mitsui
Banking
Corporation
$20,520,630.10 277 ParkAvenue
NewYork,NewYork 10172
Contact: Emily Estevez
Phone: (212)224-4177
Fax: (212) 224-4384
Email : eestevez@smbclf.com
Same as
Domestic
Lending
Office
Bank of Montreal,
Chicago Branch
s20,520,630.10 115 S. LaSalle St., 17ft Floor West
Chicago, IL 60603
Contact: Carol McDonald
Phone: (403) 515-3663
Fax: (403) 515-3650
Email: carol.mcdonald@bmo.com
Same as
Domestic
Lending
Office
CoBank, ACB $20,520,630.10 6340 S. Fiddlers Green Circle
Greenwood Village, CO 801I I
Contact: Credit Information Services
Fax: (303) 224-6101
Email : ClServices@cobank.com
Same as
Domestic
Lending
Office
The Bank of New
York Mellon
$20,520,630.10 6023 Airport Road
Oriskany, NY 13424
Contacl Brian K. Brown
Phone: (315) 801-2433
Fax: (315) 765-4822
Email:brian.brown@bnymellon. com
Same as
Domestic
Lending
Office
t-4
Name of Bank Commitment
Amount
Domestic
Lendine Ofiice
Eurodollar
Lendine
Office
TD BankN.A.$20,520,630.10 2005 Market Street
Philadelphia, Pennsylvania I 9 1 03
Contact: Vijay Prasad
Phone: (646) 652-1427
Email : Vij ay.prasad2@td.com
Group Email:
investor.orocessing@yesbank.com
Same as
Domestic
Lending
Office
KeyBankNational
Association
$20,520,630.10 4900 Tiedeman Road
Brooklyn, OH44lM
Contact: KAS Servicing
Phone: (216)813-5647
Fax : (216) 370-5997 (Note: All notices must
be faxed)
Email: kas-servicing@keybank.com
Group Email: kas servicing@keybe4!49lq-
Same as
Domestic
Lending
Office
SunTrust Bank $20,520,630.09 2l I Perimeter Center Parkway
Atlanta, GA 30346
Contact: Meta Tshimanga
Phone: (770)352-5231
Fax: (844) 288-3379
Email: Meta.
Same as
Domestic
Lending
Offrce
Canadian Imperial
Bank of
Commerce, New
York Branch
s20,520,630.10 595 Bay Street, 5ft Floor
Toronto, ON M5G 2C2
Contact: Angela Tom
Phone: (416)5424446
Fax: (905) 948-1934
Same as
Domestic
Lending
Office
PNC Bank,
National
Association
$20,520,630.10 249Fifth Avenue
One PNC Plaza
Pittsburgh, Pennsylvani a I 5222
Contact: Janet Gordon
Phone: (440) 546-6564
Fax: (877) 717-5502
Email: i anet. sordon@pnc.com
Group Email:
P arlicipationCloserReq u
Same as
Domestic
Lending
Ofiice
I-5
Name of Bank Commitment
Amount
Domestic
Lendine Office
Eurodollar
Lendine
OfIice
Banco Santander,
S.A., New York
Branch
$20,520,630.10 45 East 53rd Street
New York, NY 10022
Same as
Domestic
Lending
Office
National Australia
Bank Limited
$20,520,630.10 245 ParkAve.28th Floor
NewYork, NY 10167
Contact: Eli Davis / Helen Hsu
Phone: (212) 9 t 6-9s50 I (ztz) 9 I 6-9619
Email: eli.davis@nabny.com /
helen.hsu@nabny.com
Same as
Domestic
Lending
Ofiice
The Northern
Trust Company
$2,500,000.00 50 S. LaSalle Street
Chicago, Illinois 60603
Contacfi Murtuza Zianddin
Phone: (312) 557-3075
Fax: (312) 557-1425
Email: mzl4@ntrs.com
Same as
Domestic
Lending
Office
National
Cooperative
Services
Corporation
(NCSC)
$37,500,000.00 20701 Cooperative Way
Dulles, Virginia 20166
Contact: Jamie Rodrigues
Phone: (703)467-2740
Fax: (703) 467-5653
Email:Jamie.Rodrizuez@nrucfc. cooo
Same as
Domestic
Lending
Ofiice
TOTAL $600,000,000
SCIIEDULE II
LIST OF FRONTING COMMITMENTS
PACIFICORP
U. S. $600,000, 000 Amended and Restated Credit Agreement
LC Issuine Bank LC Issuine BankAddress Frontins
Commitment
JPMorgan Chase Bank, N.A.500 Stanton Christiana Road,
Ops 2, Floor 03
Newark, Delaware 197 13-2107
Contact: Juan Javellana
Phone: (212)2704272
Email:
iuan j j avellana@j pmorean. com
Group Email:
na cps@ipmorgan.cqln
$125,000,000
MUFG Union Bank, N.A.445 South Figueroa Street, 15th Floor
Los Angeles, CA 90071
Contact: Jeffrey Flagg
Phone: (213)236-6911
Email: jflagg@us.mufgjp
Group Email:
#CLO SYND@unionbank. com
$25,000,000
SCHEDULE III
LIST OF MATERIAL SUBSIDIARIES
PACIFICORP
U.S. $600,000,000 Amended and Restated Credit Agreement
None.
SCHEDULE IV
EXISTING LETTERS OF CREDIT
None.
PUBLISHED CUSP NUMBERS:
EXECUTION VERSION
69511YAL6
69511Y4N2
u.s. $600,000,000
AMENDED AI\D RESTATED CREDIT AGREEMENT
Dated as of April 30, 2018
Among
PACIFICORP
as the Borrower
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
JPMORGAN CHASE BAI\K, N.A.
as Administrative Agent
and
THE LC ISSUING BANKS
PARTY HERETO FROM TIME TO TIME
as LC Issuing Banks
JPMORGAN CHASE BANK,N.A. CITIGROUPGLOBALMARKETS INC.
WELLS FARGO SECURITIES, LLC U.S. BAI\TKNATIONALASSOCIATION
MIZUHO BANII LTD. BARCLAYS BANKPLC
MUFGUNION BANIIN.A. BNPPARIBAS SECURITIES CORP.
Joint Lead Aruangers and Joint Bookrunners
WELLS FARGO BANIT NATIONAL
ASSOCIATION
MrzuHo BANK LTD.
MUFG UMON BANK N.A.
crTrBANrL N.A.
U.S. BANK NATIONAL ASSOCIATION
BARCLAYS BANKPLC
BNPPARIBAS
Syndication Agents
THE BANKOT'NOVASCOTIA
ROYALBANKOFCANADA
BANK OFMONTREAL, CHICAGO BRANCH
KEYBAIIK NATIONAL ASSOCIATION
SUMITOMO MITSUI BAIIKING
CORPORATION
SUNTRUSTBANK
Documentation Agents
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AI\D ACCOUNTING TERMS.... ............1
SECTION 1.01. Certain Defined Terms I
SECTION 1.02. Computation of Time Periods.,,,...23
.,.,..23
......23
......23
ARTICLE II AMOUNTS AI\D TERMS OF THE EXTENSIONS OF CREDIT...............,,24
Paee
SECTION 1.03. Accounting Terms..
SECTION 1.04. Classification of Loans and Borrowings
SECTION 1.05. Other Interpretive Provisions.
SECTION 2.01. The Revolving Loans.
SECTION 2.02. Making the Revolving Loans.
SECTION 2.03. [Reserved] .............
SECTION Z.}4.Letters of Credit.
SECTION 2.05. Fees.
SECTION 2.06. Extension of the Termination Date........
SECTION 2.07. Increase of the Commif,nents. ...........'...
SECTION 2.08. Termination or Reduction of the Commitrnents. ......
SECTION 2.09. Repayment of Loans. .................. "...
SECTION 2. 1 0. Evidence of Indebtedness...........'.....
)A
.................24
'..,......,....25
,.....,.,......25
...............3 1
...............3 1
............,..33
...............34
....,....,.,,,,34
...............3s
...............35SECTION 2.1 1.
SECTION 2.12.
SECTION 2.13.
SECTION 2.14.
SECTION 2.I5.
Lnterest on Loans.
lnterest Rate Determination.
Conversion of Revolving Loans.
Optional Prepayments of Loans.
Increased Costs.
36
37
................38
................39
................40
................40
SECTION 2.1 6. Illegality
SECTION 2.17 . P ayments and Computations.
SECTION 2.18. Taxes.
SECTION 2.19. Sharing of Payments, Etc.
SECTION 2.20. Mitigation Obligations; Replacement of Lenders. .......
SECTION 2.21 . Defaulting Lenders. ...........'..
SECTION 2.22. Cash Collateral.
ARTICLE III COI\DITIONS PRECEDENT ............
SECTION 3.0 1 . Conditions Precedent to Effectiveness.....
SECTION 3.02. Conditions Precedent to each Extension of Credit'
SECTION 3.03. Conditions Precedent to Issuance of Each Bond Letter of Credit.........
ARTICLE IV REPRESENTATIONS AI\D WARRANTIES .............55
SECTION 4.01. Representations and Warranties of the Borrower. ...
2
1
.......55
ARTICLE V COVENAT\TS OF THE BORROWER............... ...........58
SECTION 5.0 I . Affirmative Covenants.
SECTION 5.02. Negative Covenants. ...
SECTION 5.03. Financial Covenant. ....
..........58
..........61
ARTICLE \rI EVENTS OF DEFAULT............
SECTION 6.01. Events of Default. ..
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default.
ARTICLE YII THE ADMINISTRATIVE AGENT.... ......66
SECTION 7.0 1 . Appointment and Authority. ................
SECTION 7.02. Rights as a Lender...............
SECTION 7.03. Exculpatory Provisions.
SECTION 7.04. Reliance by Administrative Agent.......
SECTION 7.05. Resignation of Administrative Agent.
SECTION 7.06. Non-Reliance on Administrative Agent and other Lenders.
SECTION 7.07. Indemnification.
SECTION 7.08. No Other Duties, etc..................
ARTICLE VIII 1\,IISCELLAI\EOUS.............
SECTION 8.01. Amendments, Etc.
SECTION 8.02. Notices, Etc..
SECTION 8.03. No Waiver; Remedies.
SECTION 8.04. Costs and Expenses; Indemnification.
SECTION 8.05. Right of Set-off.
SECTION 8.06. Binding Effect.
SECTION 8. 07. Assignments and Participations. ........
SECTION 8.08. Confidentiality.
SECTION 8.09. Governing Law.
SECTION 8. I 0. Severability. ..........
SECTION 8.11. Execution in Counterparts.
SECTION 8. 1 2. Jurisdiction, Etc.................
SECTION 8.13. Waiver of Jury Trial
SECTION 8. 14. USA Patriot Act. .....
SECTION 8.15. No Fiduciary Duty. .........
SECTION 8.16. Acknowledgement and consent to Bail-In of EEA Financial
Institutions
SECTION 8. I 7. Novation; Reaffirmation. .........
SECTION 8.18. Certain ERISA Matters.
63
66
..83
..84
..84
l1
EXIIIBITS AND SCHEDULES
EXHIBIT A
E)C{IBIT B
EXHIBIT C
Form ofNotice of Borrowing
Form of Request for Issuance
Form of Assignment and AssumPtion
Form of U.S. Tax Compliance Certificate (For Foreign Lenders
That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Form of U.S. Tax Compliance Certificate (For Foreign Participants
That Are Not Partnerships For U.S. Federal lncome Tax Purposes)
Form of U.S. Tax Compliance Certificate (For Foreign Participants
That Are Partnerships For U.S. Federal Income Tax Purposes)
Form of U.S. Tax Compliance Certificate (For Foreign Lenders
That Are Partnerships For U.S. Federal Income Tax Purposes)
List of Commitment Amounts and Applicable Lending Offices
EXHTBIT F-1 ------------
EXHIBIT F-2
EXHIBIT F-3
EXHIBTT F-4 ---------------
SCHEDULE I
SCHEDULE II --------------- List of Fronting Commitnents
SCHEDULE III--------------- List of Material Subsidiaries
SCHEDULE IV-------------- Existing Letters of Credit
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 30, 2018 (as
further amended, restated, supplemented or otherwise modified from time to time, this
"Agreemenl'), among PACIFICORP, an Oregon corporation (the"Borrowet''), the banks,
financial institutions and other institutional lenders listed on the signatures pages hereof (the*Initial Lenders"), JPMORGAN CHASE BANK, N.A. (JPMCB"), as administrative agent (in
such capacity, the *Administrative Agenf') for the Lenders (as hereinafter defined), and the LC
Issuing Banks (as hereinafter defined) party hereto from time to time.
BACKGROUND
This Agreement amends and restates in its entirety the Credit Agreement dated as of June
30,2017, by and among the Borrower, JPMCB, as administrative agent, and the existing lenders
party thereto (as amended, restated, supplemented or otherwise modified from time to time, the
" Existing Credit Agreemenf').
ln consideration of the premises and of the mutual agreements herein contained and
intending to be legally bound hereby, the parties hereto agree that the above-referenced existing
credit agreement be and it hereby is amended and restated to read in full as follows:
ARTICLE I
DEFINITIONS AI\D ACCOUNTING TERMS
SECTION 1.01. Certain DeJined Terms.
As used in this Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the terms defined):
*Administrative Agenf' has the meaning specified in the first paragraph of this
Agreement.
*Administrative Questionnaire" means an administrative questionnaire in a form
supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, controls or is controlled by or is under
common control with the Person specified. For purposes of this definition, the term
"control" (including the terms "controlled by" and "under common control with") of a
Person means the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the ability to
exercise voting power, by contract or otherwise.
"Agent Fee Letter" means the letter agreement dated March2l,2018 among the
Borrower and the Administrative Agent, as amended, restated, supplemented or otherwise
modified from time to time.
2
*Agent Parties" has the meaning specified in Section 8.02(d)(ii).
"Agent's Account" means the account of the Administrative Agent designated
from time to time in a written notice to the Lenders and the Borrower as the account to
which the Lenders are to fund Borrowings and the Borrower is to make payments under
this Agreement.
"Anti-Corruption Laws" means all laws, rules, and regulations of any jurisdiction
applicable to the Borrower or any Subsidiary of the Borrower or their respective activities
fiom time to time concerning or relating to bribery or comrption, including, without
limitation, (i) the United States Foreign Comrpt Practices Act of 1977, as amended from
time to time, and the applicable regulations thereunder, and (ii) to the extent applicable, the
United Kingdom's Bribery Act 2010, as amended from time to time.
"Applicable Law" means (i) all applicable cofllmon law and principles of equity
and (ii) all-applicable provisions of all (A) constitutions, statutes, rules, regulations and
orders of all Governmental Authorities, (B) Govemmental Approvals and (C) orders,
decisions, judgments and decrees of all courts (whether at law or in equity or admiralty)
and arbitrators.
"Applicable Lending Office" means, with respect to each Lender, such Lender's
Domestic iending Office in the case of a Base Rate Loan and such Lender's Eurodollar
Lending Office in the case of a Eurodollar Rate Revolving Loan.
,,Applicable Margin" means, with respect to any Base Rate Loan and any
Eurodollar Rate Revolving Loan, at all times during which any Applicable Rating Level
set forth below is in effect, the rate per annum (except as provided below) for such Loan
set forth below next to such Applicable Rating Level:
1 0.6250/o 0.000%
2 0.750o/o 0.000%
aJ 0.875%0.000%
4 1.000%0.000%
5 r.t25%0.t25%
provided, that the Applicable Margins set forth above shall be increased, for each
Applicable Rating Level, upon the occurrence and during the continuance of any Event of
Default by 2.00% per alxrum. Any change in the Applicable Margin resulting from a
change in the Applicable Rating Level shall become effective upon the date of
announcement of any change in the Moody's Rating or the S&P Rating that results in such
change in the Applicable Rating Level.
J
"Applicable Rating Levet' at any time shall be determined in accordance with the
then-applicable S&P Rating or the then-applicable Moody's Rating as follows:
Applicable Rating
Level
S&P Rating AA- or or Moody's Rating Aa3 or hieher 1
S&P Rating A+ or Moody's Rating Al 2
S&P Rating A or Moody's A2 J
S&P Rating A- or Moody's Rating A.3 4
S&P Rating BBB+ or Moody's Rating Baal or below or
unrated
5
The Applicable Rating Level for any day shall be determined based upon the higher of the
S&P Rating and the Moody's Rating in effect on such day. If the S&P Rating and the
Moody's Rating are not the same (i.e., a "split rating"), the higher (better) of such ratings
shall control, unless the ratings differ by more than one level, in which case the rating one
level below the higher of the two ratings shall control.
"Approved Funt' means any Fund that is administered or managed by (i) a Lender,(ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that administers or
manages a Lender.
"Assignment and Assumption" means an assignment and assumption entered into
by a Lender and an Eligible Assignee (with the consent of any party whose consent is
required by Section 8.07), and accepted by the Administrative Agent, in substantially the
form of Exhibit c or any other form approved by the Administrative Agent.
"Available commitmenfs" means, on any day, the aggregate unused commitments,
computed after giving effect to all Extensions of Credit made or to be made on such day,
the application of proceeds therefrom and all prepayments and repayments of Revolving
Loans made on such day.
"Bail-In Action" means the exercise of any Write-Down and Conversion Powers
by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial
Institution.
"Bail-In Legislation" means, with respect to any EEA Member country
implementing Article 55 of Directive 2014159/EU of the European Parliament and of the
Council of the European Union, the implementing law for such EEA Member Country
from time to time which is described in the EU Bail-In Legislation Schedule.
"Bankruptcy Evenf'means, with respect to any Person, such Person becomes the
subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator,
trustee, administrator, custodian, assignee for the benefit of creditors or similar Person
charged with reorganizatiot or liquidation of its business or assets (including the Federal
Deposit Insurance Corporation or any other Governmental Authority acting in a similar
4
capacity) appointed for it, provided thata Bankruptcy Event shall not result solely by virtue
of any ownership interest, or the acquisition of any ownership interest, in such Person or a
direci or indireci parent company of such Person by a Governmental Authority if and for
so long as such ownership interest does not result in or provide such Person with immunity
from ihe jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permit such Person (or such Govemmental
Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with
such Lender.
"BaseRate" means a fluctuating interest rate per annum in effect from time to time,
which rate per annum shall at all times be equal to the highest of:
(i) the rate of interest announced by JPMCB from time to time as JPMCB's
prime rate;
ll2 of lo/o per annum above the NYFRB Rate in effect on such date; and
the rate of interestp er annum (rounded upwards to the nearest 1/100 of To/o)
appearing on the Service equal to the one-month London interbank offered
rate for deposits in Dollars as determined at approximately 11:00 A.M.
(London time) on such day (or if such day is not a Business Day, on the
next preceding Business Day), plus 1%; provided, however, if more than
one iate is specified on the Service, the applicable rate shall be the
arithmetic mean of all such rates plus l%
; provided,that in no event shall the Base Rate be less than0o/o.
"Base Rate Loan" means a Loan that bears interest as provided in Section 2.ll(a).
,,Benefit Plan " means any of (a) an "employee benefit plan" (as defined in ERISA)
that is subjeci to Title I of ERISA, (b) a "plan" as defined in Section 4975 of the Internal
Revenue iode or (c) any Person whose assets include (for purposes of ERISA Section
3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Internal Revenue
Code) the assets of any such "employee benefit plan" or "plan"-
"Berkshire Hathaway" means Berkshire Hathaway Inc.
"Bond Event of Defoutf'has the meaning specified in Section 6.01'
"Bond Letter of Credif'means any standby or direct pay letter of credit issued by
an LC Issuing Bank pursuant to Section 2.04 to support certain obligations to pay the
principal of, interest on and/or purchase or redemption price of Bonds.
"Bonds" means pollution control revenue bonds or industrial development revenue
bonds (or similar obligations, however designated) issued pursuant to an Indenture between
the Trustee and the Issuer named therein.
"Borrower" has the meaning specified in the flrrst paragraph of this Agreement.
(ii)
(iii)
5
"Borrowing" means a borrowing by the Borrower consisting of simultaneous
Revolving Loans of the same T1pe, having the same Interest Period and ratably made or
Converted on the same day by each of the Lenders pursuant to Section 2.02 or 2.13, as the
case may be. All Revolving Loans to the Borrower of the same Type, having the same
Interest Period and made or Converted on the same day shall be deemed a single borrowing
hereunder until repaid or next Converted.
"Borrowing Date" means the date of any Borrowing.
o'Business Dayo' means a day of the year on which banks are not required or
authorized by law to close inNew York City or Los Angeles and, if the applicable business
Day relates to any Eurodollar Rate Revolving Loans , "Business Day" also includes a day
on which dealings are carried on in the London interbank market.
"cash collateralize" means to pledge and deposit with or deliver to theAdministrative Agent, for the benefit of one or more of the LC Issuing Banks and the
Lenders, as collateral for LC Outstandings and obligations of Lenders to fund participations
in respect of LC Outstandings, cash or deposit account balances or, if the Administrative
Agent and each applicable LC Issuing Bank shall agree in their sole discretion, other credit
support, in each case pursuant to documentation in form and substance reasonably
satisfactory to the Administrative Agent and each applicable LC Issuing Bank. ,,Cash
Collaterat'shall have a meaning correlative to the foregoing and shall include the proceeds
ofsuch cash collateral and other credit support.
"Change in Law" means the occurrence, after the date of this Agreement, of any
of the following: (i) the adoption of any law, rule, regulation or treaty, 1ii; any change in
any law, rule, regulation or treaty or in the administration, interpretation, impiementation
or application thereof by any Governmental Authority or (iii) the making oi issuance of
any request, rule, guideline or directive (whether or not having the force of law) by any
Governmental Authority; provided that notwithstanding anything herein to the contrary,(x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests,
rules, guidelines or directives (whether or not having the force of law) thereunder or issued
in connection therewith and (y) all requests, rules, guidelines or directives (whether or not
having the force of law) promulgated by the Bank for International Settlements, the Basel
Committee on Banking Supervision (or any successor or similar authority) or the United
States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case
be deemed to be a "change in Law," regardless of the date enacted, adopted or issued.
'oChange of Control'has the meaning specified in Section 6.01(h).
*Closing Datd'means April 30, 2018.
"Commitmenf' means, for each Lender, the obligation of such Lender to make
Revolving Loans to the Borrower hereunder in an aggregate amount no greater than the
amount set forth on Schedule I hereto or, if such Lender has entered into any Assignment
and Assumption, set forth for such Lender in the Register maintained by the Adminiitrative
6
Agent pursuant to Section 8.07(c), in each such case as such amount may be from time to
time increased pursuant to Section 2.07 or reduced pursuant to Section 2.08'
"Commitment Fee Rate" means, at any time, the rate per annum set forth below
next to the Applicable Rating Level in effect at such time:
A change in the Commitment Fee Rate resulting from a change in the Applicable Rating
Level shall become effective upon the date of public announcement of a change in the
Moody,s Rating or the S&P Rating that results in a change in the Applicable Rating Level.
,,Commitment Percentage" means, as to any Lender as of any date of
determination, the percentage describing such Lender's pro rata share of the Commitrnents
set forth initially on S"n.Arle I hereto or in the Register from time to time; provided that
in the case of Section 2.21 when a Defaulting Lender shall exist, "Commitment
percentage" means the percentage of the total Commitments (disregarding any Defaulting
Lender's Commitment)-represented by such Lender's Commitment. If the Commitments
have terminated or expired, the Commitment Percentages shall be determined based upon
the Commitments most recently in effect, givrng effect to any assignments and to any
Lender's status as a Defaulting Lender at the time of determination.
,,Commitments" means the aggregate of each Lender's Commitment hereunder.
"Communications" has the meaning specified in Section 8'02(dxii)'
,,ConJidential Informatiott" means information that the Borrower furnishes to the
Administrative Agent, the Joint Lead Arrangers or any Lender in a writing designated as
confidential, but does not include any such information that is or becomes generally
available to the public or that is or becomes available to the Administrative Agent, the Joint
Lead Arrang"ri or such Lender from a source other than the Borrower that has no
obligation to maintain the confidentiality of such information.
,,Consolidated Assets" means, on any date of determination, the total of all assets
(including revaluations thereof as a result of commercial appraisals, price level restatement
or otherwise) appearing on the consolidated balance sheet of the Borrower and its
Consolidatea SuUsiaiariis most recently delivered to the Lenders pursuant to Section
5.01(h) as of such date of determination.
,,Consoliduted Capital" means the sum (without duplication) of (i) Consolidated
Debt of the Borrower (wifhout giving effect to the proviso in the definition of Consolidated
Applicable
Ratins Level
1 0.050%
2 0.060%
J 0.075%
4 0.100%
5 0.150%
7
Debt) and (ii) consolidated equity of all classes (whether cornmon, preferred, mandatorily
convertible preferred or preference) of the Borrower.
"Consolidated Debt" of the Borrower means the total principal amount of all Debt
of the Borrower and its Consolidated Subsidiaries; provided that Guaranties of Debt shall
not be included in such total principal amount.
"consolidated subsidiary" means, with respect to any person at any time, any
Subsidiary or other Person the accounts of which would be consolidated with those of such
first Person in its consolidated financial statements in accordance with GAAP.
"Convert," "Conversion" and "Convertet' each refers to a conversion of
Revolving Loans of one Tlpe into Revolving Loans of the other Type, or the selection of
a new, or the renewal of the same, Interest Period for Eurodollar Rate Revolving Loans,
pursuant to Section 2.12 or 2.13.
"credit Party- means the Administrative Agent, any LC Issuing Bank or any
Lender.
"Custodian" means, for any series of Bonds, any Person acting as bailee and agent
for the Administrative Agent (on behalf of the applicable LC Issuing Bank and the Lendirs)
under any Pledge Agreement relating to such Bonds.
"Debf' of any Person means, at any date, without duplication, (i) all indebtedness
of such Person for borrowed money, (ii) all obligations of such Person for the deferred
purchase price of property or services (other than trade payables incurred in the ordinary
course ofsuch Person's business), (iii) all obligations ofsuch Person evidenced by notes,
bonds, debentures or other similar instruments, (iv) all obligations of such Person as lessee
under leases that have been, in accordance with GAAP, recorded as capital leases, (v) all
obligations of such Person in respect of reimbursement agreements with respect to
acceptances, letters of credit (other than trade letters of credit) or similar extensions of
credit, and (vi) all Guaranties. Solely for the purpose of calculating compliance with the
covenant in Section 5.03, Debt shall not include Debt of the Borrower or its Consolidated
Subsidiaries arising from the qualification of an arrangement as a lease due to that
arangement conveying the right to use or to control the use ofproperty, plant or equipment
underthe application ofthe Financial Accounting Standards Board's Accounting Standards
Codification Topic 840 - Leases paragraph 840-10-15-6 (or the Accounting Standards
Codification Topic 842 -Leases paragraphs 842- 1 0- I 5-3 through 5), nor shall Debt include
Debt of any variable interest entity consolidated by PacifiCorp under the requirements of
Topic 810 - Consolidation.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of America,
and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, returangement, receivership, insolvency, reorganization, or similar
debtor relief laws of the United States or other applicable jurisdictions from time to time
in effect.
"Declining Lender" has the meaning specified in Section 2.06(b).
8
"Defaulf' means any Event of Default or any event that would constitute an Event
of Default but for the requirement that notice be given or time elapse or both.
"Defaulting Lender" means, subject to section 2.21(b), any Lender that (i) has
failed, within rwo business Days after the date required to be frrnded or paid, to (A) fund
all or any portion of its Loans, (B) fund any portion of its participations in Letters of Credit
or (C) puy ou"r to any Credit Party any other amount required to be paid by it under this
Agieemem, unless, in the case of clause (A) above, such failure is the result of such
LJnder's good faith determination that one or more conditions precedent to funding (each
of which ionditions precedent, together with any applicable default, shall be specifically
identified in writing) has not been satisfied, as notified by such Lender to the
Administrative Agent and the Borrower in such writing, (ii) has notified the Borrower or
any Credit Partyln writing that it does not intend to comply with any of its funding
obiigations under this Agreement or has made a public statement to the effect that it does
not irtend to comply with its funding obligations under this Agreement (unless such writing
or public statemenirelates to such Lender's obligation to fund a Loan hereunder and such
porition is based on such Lender's good faith determination that a condition precedent
iwhich condition precedent, together with any applicable default, shall be specifically
identified in such writing or public statement) to funding aLoan under this Agreement
cannot be satisfied), (iii) has failed, within three Business Days after written request by the
Administrative Agent, any LC Issuing Bank or the Borrower, acting in good faith, to
confirm in writing to suchrequesting party that it will comply with its obligations to fund
prospective Loans and participations in then outstanding Letters of Credit under this
Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to
clause (iii) upon such requesting party's receipt of such written confirmation in form and
substance reasonably satisfactory to it and the Administrative Agent, or (iv) has become
the subject of a (A) Bankruptcy Event or (B) Bail-In Action. Any determination by the
Administrative Agent that a Lender is a Defaulting Lender under any one or more of
clauses (i) through (iv) above shall be conclusive and binding absent manifest error, and
such Lender shai be deemed to be a Defaulting Lender (subject to Section 2.21(b)) upon
delivery of written notice of such determination to the Borrower, each LC Issuing Bank
and each Lender.
"Designated Lender'o has the meaning specified in Section 2'07(a)'
"Dollars" and the symbol "$" mean lawful culTency of the United States of
America.
"Domestic Lending Office" means, with respect to any Lender, the office of such
Lender specified as its "Domestic Lending Office" opposite its name on Schedule I hereto
or in the Assignment and Assumption pursuant to which it became a Lender, or such other
office of such Lender as such Lender may from time to time specify in writing to the
Borrower and the Administrative Agent.
"EEA Financial Institution" means (a) any institution established in any EEA
Member Country which is subject to the supervision of an EEA Resolution Authority, (b)
any entity established in an EEA Member Country which is a parent of an institution
9
described in clause (a) of this definition, or (c) any institution established in an EEA
Member Country which is a subsidiary of an institution described in clauses (a) or (b) of
this definition and is subject to consolidated supervision with its parent.
*EEA Member Country" means any of the member states of the European Union,
Iceland, Liechtenstein, and Norway.
*EEA Resolution Authoritlf'means any public administrative authority or any
Person entrusted with public administrative authority of any EEA Member Country(including any delegee) having responsibility for the resolution of any EEA Financial
Institution.
"Eligible Assignee" means any Person that meets the requirements to be an
assignee under Section 8.07(bxiii), (v) and (vi) (subject to such consents, if any, as may be
required under Section 8.O7(bxiii)).
"Environmental Law" means any federal, state, local or foreign stafute, law,
ordinance, rule, regulation, code, order, judgment, decree or judicial or agency
interpretation, policy or guidance relating to pollution or protection of the environment,
health, safety or natural resources, including, without limitation, those relating to the use,
handling, transportation, treatment, storage, disposal, release or discharge oi Hazardous
Materials.
"ERrsA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued thereunder.
*ERISA Affiiate" means, with respect to any Person, each trade or business
(whether or not incorporated) that is considered to be a single employer with such entity
within the meaning of Section 414(b), (c), (m) or (o) of the Internal Revenue Code.
*ERISA Evenf'means (i) any "reportable event," as defined in Section 4043 of
ERISA with respect to a Pension Plan (other than an event as to which the PBGC has
waived the requirement of Section 4043(a) of ERISA that it be notified of such event); (ii)
the failure to make a required contribution to any Pension Plan that would result in the
imposition of a lien or other encumbrance or the provision of security under Section 430
of the Intemal Revenue Code or Section 303 or 4068 of ERISA, or there being or arising
any "unpaid minimum required contribution" or "accumulated funding deficiency" (as
defined or otherwise set forth in Section 4971 of the Internal Revenue Code or Part 3 of
Subtitle B of Title I of ERISA), whether or not waived, or the filing of any request for or
receipt of a minimum funding waiver under Section 412 of thelnternal RevenuJCode with
respect to any Pension Plan or Multiemployer Plan, or a determination that any pension
Plan is, or is reasonably expected to be, in at-risk status under Title tV of ERISA; (iii) thefiling of a notice of intent to terminate any Pension Plan, if such termination would require
material additional contributions in order to be considered a standard termination within
the meaning of Section 4041(b) of ERISA, the filing under Section 4041(c) of ERISA of a
notice of intent to terminate any Pension Plan, or the termination of any Pension Plan under
Section 4041(c) of ERISA; (iv) the institutionofproceedings, orthe occrurence of an event
10
or condition that would reasonably be expected to constitute grounds for the institution of
proceedings by the PBGC, under Section 4042 of ERISA, for the termination of, or the
appointme]t of , trrrt"" to administer, any Pension Plan; (v) the complete or partial
withdrawal of the Borrower or any of its ERISA Affiliates from a Multiemployer Plan, the
reorganization or insolvency under Title IV of ERISA of any Multiemployer Plan, or the
r.""ipt by the Borrower or any of its ERISA Affiliates of any notice that a Multiemployer
phnls in endangered or critical status under Section 305 of ERISA; (vi) the failure by the
Borrower or any of its ERISA Affiliates to comply with ERISA or the related provisions
of the Intemal Revenue Code with respect to any Pension Plan; (vii) the Borrower or any
of its ERISA Affiliates incurring any liability under Title IV of ERISA with respect to any
pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA);
or (viii) the failure by the Borrower or any of its Subsidiaries to comply with Applicable
Law with respect to any Foreign Plan.
*EU Bail-In Legislati.on Schedule" means the EU Bail-In Legislation Schedule
published by the Loan Market Association (or any successor Person), as in effect from time
to time.
"Eurocurrency Liabilities" has the meaning assigned to that term in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from time to time.
"Eurodollar Lending Oflice" means, with respect to any Lender, the office of such
Lender specified as its "Eurodollar Lending Office" opposite its name on Schedule I hereto
or in the Assignment and Assumption pursuant to which it became a Lender (or, if no such
office is specified, its Domestic Lending Office), or such other office of such Lender as
such Lender may from time to time specify in writing to the Borrower and the
Administrative Agent.
,'Euro4ollar Rate" means, for any lnterest Period for each Eurodollar Rate
Revolving Loan comprising part of the same Borrowing, the rate of interest per annum
(rounded upward to the niarest 1i100 of l%o) as calculated by ICE Benchmark
Administration Limited (or any other person which takes over the administration of that
rate) and obtained through a nationally recognized service such as the Dow Jones Market
Service (Telerate), Reutirs or other such service then berng used by the Administrative
Agent to ascertain such rates of interest (in each case, the "Service") as the London
inierbank offered rate for deposits in Dollars at approximately 11:00 A.M. (Iondon time)
two Business Days before the first day of such lnterest Period for a period equal to such
Interest Period, but in no event less than 0%.
,,Eurodollar Rate Reserve Percentage" of any Lender for any lnterest Period for
each Eurodollar Rate Revolving Loan means the reserve percentage applicable to such
Lender during such lnterest Period (or if more than one such percentage shall be so
applicable, G auity average of such percentages for those days in such Interest Period
a*irrg which any such percentage shall be so applicable) under regulations issued from
time Io time by tire Board of Govemors of the Federal Reserve System (or any successor)
for determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) then applicable to such
1l
Lender with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that includes deposits by
reference to which the interest rate on Eurodollar Rate Revolving Loans is determined)
having a term equal to such Interest Period.
"Eurodollar Rate Revolving Loan" means a Revolving Loan that bears interest as
provided in Section 2.1l(b).
"Eurodollar successor Rate" has the meaning specified in section 2.r2(c)
"Events of Defoulf'has the meaning specified in Section 6.01.
*Excluded Taxes" means any of the following Taxes imposed on or with respect
to a Recipient or required to be withheld or deducted from a payment to a Recipient, (1)
Taxes imposed on or measured by net income (however denominated), franchise Taxes,
and branch profits Taxes, in each case, (A) imposed as a result of such Recipient being
organized under the laws of or having its principal office or, in the case of any Lender, its
Applicable Lending Office located in, the jurisdiction imposing such Tax (or any political
subdivision thereof) or (B) that are Other Connection Taxes, (ii) in the case of a Lender,
withholding Taxes imposed on amounts payable to or for the account of such Lender with
respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on
the date on which (A) such Lender acquires such interest in the Loan or Commitrnent (other
than pursuant to an assignment request by the Borrower under Section 2.20(b)) or (B) such
Lender changes its Applicable Lending Office, except in each case to the extent that,
pursuant to Section 2.18, amounts with respect to such Taxes were payable either to such
Lender's assignor immediately before such Lender became aparty hereto or to such Lender
immediately before it changed its Applicable Lending Office, (iii) Taxes attributable to
such Recipient's failure to comply with Section 2.18(g) and (iv) any Taxes imposed under
FATCA.
*Existing Credit Agreemenf'has the meaning specified in the second paragraph of
this Agreement.
"Existing Letters of Credif' shall mean each of the letters of credit described by
applicant, date of issuance, letter of credit number, amount, beneficiary and the date of
expiry on Schedule [V hereto.
"Ertension Effective Date" has the meaning specified in section 2.06(c).
"Ertension of Crcdif' means the making of a Borrowing, the issuance of a Letter
of Credit or the amendment of any Letter of Credit having the effect of extending the stated
termination date thereof or increasing the maximum amount available to be drawn
thereunder. Forpurposes of this Agreement, a Conversion shall not constitute an Extension
of Credit.
"FATCA" means Sections 1471 through 1474 of the lnternal Revenue Code, as of
the date of this Agreement (or any amended or successor version that is substantively
comparable and not materially more onerous to comply with) any current or future
l2
regulations or official interpretations thereof, any agreements entered into pursuant to
Section 1471(bX1) of the lnternal Revenue Code, any intergovernmental agreement
entered into in connection with the implementation of such Sections of the lnternal
Revenue Code and any fiscal or regulatory legislation, rules or practices adopted pursuant
to any such intergovernmental agreement.
"Federal Funds Effictive Rate" means, for any day, the rate calculated by the
NyFRB based on such day's Federal funds transactions by depositary institutions (as
determined in such manner as the NYFRB shall set forth on its public website from time
to time) and published on the next succeeding Business Day by the NYFRB as the Federal
funds effective rate.
"Fee Letter" means the Agent Fee Letter, as amended, restated, supplemented or
otherwise modified from time to time.
"FERC means the U.S. Federal Energy Regulatory Commission'
*Foreign Lender" means a Lender that is not a U.S. Person'
,oForeign Plan" means any pension, profit-sharing, deferred compensation, or other
employee benefit plan, program or arrangement (other than a Pension Plan or a
Multiemployer Plan) maintained by any Subsidiary of the Borrower that, under applicable
local foriign law, is required to be funded through a trust or other funding vehicle.
"Fronting Commitmenl' means, with respect to any LC Issuing Bank, the
aggregate stated amount of all Letters of Credit that such LC Issuing Bank agrees to issue
(subject to the LC Commitment Amount), as modified from time to time pursuant to an
agrelment signed by such LC Issuing Bank and the Borrower. With respect to each Lender
that is an LC Issuing Bank on the date hereof, such LC Issuing Bank's Fronting
Commitment is listed on Schedule II, and with respect to any Lender that becomes an LC
Issuing Bank after the date hereof, such Lender's Fronting Commitment will be the amount
ugr""d-b"treen the Borrower and such Lender at the time that such knder becomes an LC
lssuing Bank, in each case, as such Fronting Commitrnent may be modified in accordance
with the terms of this Agreement.
"Fronting Exposure" means, at any time there is a Defaulting Lender, with respect
to any LC Issuing Bank, such Defaulting Lender's Commitment Percentage of the LC
Outstandingr *ith..rp"ct to Letters of Credit issued by such LC Issuing Bank other than
LC Outstandings as to which such Defaulting Lender's participation obligation has been
reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.
"Funt' means any Person (other than a natural Person) that is (or will be) engaged
in making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its activities.
*GAAP' has the meaning specified in Section 1.03.
T3
o'Governmental Approvaf'means any authorization, consent, approval, license or
exemption of, registration or filing with, or report or notice to, any Governmental
Authority.
"GovernmentalAuthority" means the govemment of the United States of America
or any other nation, or of any political subdivision thereof whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government (including any supra-national bodies such as the
European Union or the European Central Bank).
o'Guarangi' of any Person means (i) any obligation, contingent or otherwise, of
such Person to pay any Debt of any other Person and (ii) all reasonably quantifiable
obligations of such Person under indemnities or under support or capital contribution
agreements, and other reasonably quantifiable obligations (contingent or otherwise) to
purchase or otherwise to assure a creditor against loss in respect of or to assure an obligee
against loss in respect of, any Debt of any other Person guaranteed directly or indirectly in
any manner by such Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (A) to pay or purchase such Debt or to advance or supply funds for
the payment or purchase of such Debt, (B) to purchase, sell or lease (as lessee or lessor)
property, or to purchase or sell services, primarily for the purpose of enabling the debtor to
make payment of such Debt or to assure the holder of such Debt against loss, (C) to supply
funds to or in any other manner invest in the debtor (including any agreement to pay for
property or services irrespective ofwhether such property is received or such services are
rendered) or (D) otherwise to assure a creditor against loss; provided that the term
"Guaranty" shall not include endorsements for collection or deposit in the ordinary course
of business or the grant of a Lien in connection with Project Finance Debt.
o'Hazardous Materials" means (i) petroleum and petroleum products, byproductsor breakdown products, radioactive materials, asbestos-containing materials,
polychlorinated biphenyls and radon gas and (ii) any other chemicals, materials or
substances designated, classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"fndemniJied Parfif'has the meaning specified in Section 8.04(b).
"Indemnifted Taxes" means (i) Taxes, other than Excluded Taxes, imposed on or
with respect to any payment made by or on account of any obligation of the Borrower under
any Loan Document and (ii) to the extent not otherwise described in (i), Other Taxes.
"Indenture" means, for any series of Bonds, the indenture pursuant to which such
Bonds are issued and any supplement thereto relating to such Bonds.
*rnitial Lenders" has the meaning specified in the first paragraph of this
Agreement.
"fnturest Periot' means, for each Eurodollar Rate Revolving Loan comprising part
of the same Borrowing, the period commencing on the date of such Eurodollar Rate
t4
Revolving Loan or the date of the Conversion of any Base Rate Revolving Loan into such
Eurodollar Rate Revolving Loan and ending on the last day of the period selected by the
Borrower pursuant to the provisions below and, thereafter, with respect to Eurodollar Rate
RevolvingLoans, each subsequent period commencing on the last day of the immediately
preceding [rterest Period and ending on the last day of the period selected by the Borrower
pursuantlo the provisions below. The duration of each such Interest Period shall be one,
two, three or siimonths or such otherperiod acceptable to all the Lenders, as the Borrower
may, upon notice received by the Administrative Agent not later than 12:00 noon (New
Voit iity Time) on the third Business Day prior to the first day of such Interest Period,
selec! provided, however, that;
(i) the Borrower may not select any Interest Period that ends after the latest
Termination Date in effect at such time;
(ii) lnterest Periods commencing on the same date for Eurodollar Rate
Revolving Loans comprising part of the same Borrowing shall be of the
same duration;
(iii)whenever the last day of any Loterest Period would otherwise occur on a day
other than a Business Day, the last day of such lnterest Period shall be
extended to occur on the next succeeding BusinessDay, provided, ltowever,
that, if such extension would cause the last day of such Ilrterest Period to
occur in the next following calendar month, the last day of such Interest
Period shall occur on the next preceding Business Day and
whenever the first day of any Interest Period occurs on a day of an initial
calendar month for which there is no numerically corresponding day in the
calendar month that succeeds such initial calendar month by the number of
months equal to the number of months in such lnterest Period, such lnterest
Period shall end on the last Business Day of such succeeding calendar
month.
"Internal Revenue Code-" means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued thereunder.
"1R^9'means the U.S. Internal Revenue Service.
"Is1uef' means, for any series of Bonds, the issuer of such Bonds under the
applicable Indenture.
oolssuer Agreemenf' means, for any series of Bonds, the agreement between the
applicable Issuer and the Borrower pursuant to which (i) the proceeds of such Bonds are
loaned by such Issuer to the Borrower, together with any promissory note or other
instrument evidencing the Debt ofthe Borrowerunder such agreement, or (ii) the Borrower
agrees to pay the purchase price of, or rent with respect to, the facilities financed or
refinanced with the proceeds of such Bonds.
(iv)
l5
"Joint Lead Arrangers" means JPMorgan Chase Bank, N.A., Wells Fargo
Securities, LLC, Mizuho Bank, Ltd., MUFG Union Bank, N.A., citigroup Global Markets
lnc., U.S. Bank National Association, Barclays Bank PLC and BNP Paribas Securities
Corp.
"JPMCB" has the meaning specified in the recital of parties to this Agreement.
"LC Collateral Accounf'has the meaning specified in Section 6.02.
"LC commitment Amounf' means $300,000,000 as the same may be reduced
permanently from time to time pursuant to Section 2.08.
"LC Fee" has the meaning specified in Section 2.05(c).
"LC Fronting Fee" has the meaning specified in Section 2.05(d).
"LC Issuing Bank" means each Lender identified as an "LC Issuing Bank" on
Schedule II and any other Lender or Affiliate of a Lender that shall agree to issue a Letter
of Credit pursuant to Section 2.04.
"LC outstandings" means, on any date of determination, the sum of (i) the
undrawn stated amounts of all Letters of Credit that are outstanding on such date plus (ii)
the aggregate principal amount of all unpaid reimbursement obligations of the Borrower
on such date with respect to payments made by any LC Issuing Bank under any Letter of
Credit (excluding reimbursement obligations that have been repaid with the proceeds of
any Borrowing). The LC Outstandings with respect to any Lender at any time shall be its
Commitment Percentage of the total LC Outstandings at such time.
"LC Payment Notice" has the meaning specified in Section 2.04(e).
"Lenders" means the lnitial Lenders and each Person that shall become party hereto
pursuant to an Assignment and Assumption, other than any such Person that ceases to be a
party hereto pursuant to an Assignment and Assumption.
"Letter of Credif'means (a) a standby letter of credit issued by an LC Issuing Bank
pursuant to Section 2.04 or a Bond Letter of Credit, in each case, as amended, modified or
extended in accordance with the terms of this Agreement and (b) any Existing Letter of
Credit, in each case, as such letter of credit may be amended, modified, extended, renewed
or replaced from time to time in accordance with the terms of this Agreement.
"Lien' means any lien, security interest or other charge or encumbrance of any
kind, or any other type of preferential arangement, including, without limitation, the lien
or retained security title of a conditional vendor and any easement, right of way or other
encumbrance on title to real property.
"Loan Documents" means, collectively, (i) this Agreement, (ii) the Fee Letter and
(iii) any promissory note issued pursuant to Section 2.10(d).
t6
ooloans" means the loans made by the Lenders to the Borrower pursuant to this
Agreement.
*Margin Regulations" means Regulations T, U and X of the Board of Governors
of the Federal Reserve System, as in effect from time to time.
*Margin Stoclt'has the meaning specified in the Margin Regulations.
"Material Ad.verse Elfecf'means a material adverse effect on (i) on the business,
operations, properties, financial condition, assets or liabilities (including, without
limitation, contingent liabilities) of the Borrower and its Subsidiaries, taken as a whole, (ii)
the ability of the Borrower to perform its obligations under the Loan Documents or (iii) the
ability ofthe Administrative Agent, any LC Issuing Bank or any Lender to enforce its rights
under the Loan Documents.
*Material Subsidiaries" means any Subsidiary of the Borrower with respect to
which (x) the Borrower's percentage ownership interest in such Subsidiary multiplied by
(y) the book value of the Consolidated Assets of such Subsidiary represents at least 15%
of tf," Consolidated Assets of the Borrower as reflected in the latest financial statements of
the Borrower delivered pursuant to clause (i) or (ii) of Section 5.01(h).
"Minimum Collateral Amounf' means, at any time, (i) with respect to Cash
Collateral consisting of cash or deposit account balances, an amount equal to 103 % of the
Fronting Exposure of all LC Issuing Banks with respect to Letters of Credit issued and
outstanding at such time and (ii) otherwise, an amount determined by the Administrative
Agent and the LC Issuing Banks in their sole discretion.
"Moody's" means Moody's Investors Service, Inc.
"Moody's Rating" means, on any date of determination, the rating most recently
announced by Moody's with respect to any senior unsecured, non-credit enhanced Debt of
the Borrower or, if such rating is not available, the corporate credit rating of the Borrower
most recently announced by Moody's.
"Multiemployer Plan" means any "multiemployer plan" (as such term is defined
in Section a001(aX3) of ERISA), which is contributed to by (or to which there is or may
be an obligation to contribute of; the Borrower or any of its ERISA Affiliates or with
respect to which the Borrower or any of its ERISA Affiliates has, or could reasonably be
expected to have, any liability.
*New York City Time" means the time in New York, New York.
"Non-Consenting Lendef'means any Lender that does not approve any consent,
waiver or amendment that (i) requires the approval of all affected Lenders in accordance
with the terms of Section 8.01 and (ii) has been approved by the Required Lenders.
"Non-Defaulting Lendel'means, at the time of determination, a Lender that is not
a Defaulting Lender.
l7
"non-performing Lender" has the meaning specified in Section 2.04(D.
*Notice of Borrowing!'has the meaning specified in Section 2.02(a).
"NYFRB" means the Federal Reserve Bank of New York.
*NYFRB Rate" means, for any day, the greater of (a) the Federal Funds Effective
Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day
(or for any day that is not a Business Day, for the immediately preceding Business Duy);
provided that if none of such rates are published for any day that is a Business Day, the
term 'NYFRB Rate" means the rate for a Federal funds transaction quoted at 11:00 A.M.
(New York City Time) on such day received by the Administrative Agent from a Federal
funds broker of recognized standing selected by it; provided" further, that if any of the
aforesaid rates shall be less thanzero, such rate shall be deemed to be zero for purposes of
this Agreement.
*OFAC' means The Office of Foreign Assets Control of the U.S. Department of
the Treasury.
*Official Statemenf' means, for any series of Bonds, the official statement,
reoffering circular or similar disclosure document (however designated) relating to such
Bonds and the applicable LC Issuing Bank, as amended and supplemented from time to
time, and all documents incorporated therein (or in any such supplement or amendment)
by reference.
"Other Connection Taxcs" means, with respect to any Recipient, Taxes imposed
as a result of a present or former connection between such Recipient and the jurisdiction
imposing such Tax (other than connections arising solely from such Recipient having
executed, delivered, become apartyto, performed its obligations under, receivedpayments
under, received or perfected a security interest under, engaged in any other transaction
pursuant to or enforced any Loan Document).
o'Other Taxes" means all present or future stamp, court or documentary, intangible,
recording, filing or similar Taxes that arise from any payment made under, from the
execution, delivery, performance, enforcement or registration of, from the receipt or
perfection of a security interest under, or otherwise with respect to, any Loan Document,
except any such Taxes imposed with respect to an assignment (other than an assignment
made pursuant to Section2.20).
"Outstanding Credits" means, on any date of determination, the sum of (i) the
aggregate principal amount of all Ioans outstanding on such date plus (ii) the LC
Outstandings on such date. The Outstanding Credits with respect to any Lender at any
time shall be its Commitnent Percentage of the total Outstanding Credits at such time.
'oovernight Bank Funding Rate" means, for any day, the rate comprised of both
overnight Federal funds and overnight Eurodollar borrowings by U.S.-managed banking
offices of depository institutions (as such composite rate shall be determined by the
NYFRB as set forth on its public website from time to time) and published on the next
18
succeeding Business Day by the NYFRB as an overnight bank funding rate (from and after
such date as the NYFRB shall commence to publish such composite rate).
"Participanl" has the meaning assigned to such term in Section 8.07(d).
,,Participant Registef'has the meaning specified in Section 8.07(d).
*Patriot Act' has the meaning specified in Section 8.14.
*SBGC' means the U.S. Pension Benefit Guaranty Corporation (or any successor).
o'Pension Plan" means any "employee pension benefit plan" (as defined in Section
3(2) of ERISA) (other than a Multiemployer Plan), subject to the provisions of Title IV of
niUSe or Section 412 of thelnternal Revenue Code or Section 302 of ERISA, maintained
or contributed to by the Borrower or any of its ERISA Affiliates or to which the Borrower
or any of its ERISA Affiliates has or may have an obligation to contribute (or is deemed
undei Section 4069 of ERISA to have maintained or contributed to or to have had an
obligation to contribute to, or otherwise to have liability with respect to) such plan.
,,Permitted Liens" means such of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been commenced: (i) Liens
for taxes, assessments and governmental charges or levies to the extent not required to be
paid under Section 5.01(a) hereof; (ii) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens, and other similar Liens arising in
the ordinary course of business; (iii) Liens incurred or deposits made to secure obligations
under workers' compensation laws or similar legislation or to secure public or statutory
obligations; (iv) easements, rights of way and other encumbrances on title to real property
that-clo not render title to the property encumbered thereby unmarketable, including zonrtg
and landmarking restrictions; (v) any judgment Lien, unless an Event of Default under
Section 6.01(e) .hull hur" occurred and be continuing with respect thereto; (vi) any Lien
on any asset of any Person existing at the time such Person is acquired by or merged or
"on.oiidut"d with or into the Borrower or any Subsidiary of the Borrower and not created
in contemplation of such event; (vii) pledges and deposits made in the ordinary course of
business to secure the performance of bids, trade contracts (other than for Debt), operating
leases and surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business; (viii) Liens upon or in any real property
or equipment acquired, constructed, improved or held by the Borrower or any Subsidiary
in the ordinary io.rrr" of business to secure the purchase price of such property or
equipment or to secure Debt incurred solely for the purpose of financing the acquisition,
construction or improvement of such property or equipment, or Liens existing on such
property or equipment at the time of its acquisition (other than any such Liens created in
"oot"1;1ptution
oisuch acquisition that were not incurred to finance the acquisition of such
property), (ix) Liens securing Project Finance Debt, (x) any Lien on the Borrower's or any
ivtaieriut.subsidiary's interest in Bonds or cash or cash equivalents securing (A) the
obligation of the Borrower or any Material Subsidiary to reimburse the issuer of a letter of
credit supporting payments to be made in respect of such Bonds (including any Bond Letter
of Crediiffor a drawing on such letter of credit for the purpose of purchasing Bonds or (B)
I9
the obligation of the Borrower or any Material Subsidiary to reimburse or repay amounts
advanced under any facility entered into to provide liquidity or credit support for any issue
of Bonds; and (xi) extensions, renewals or replacements of any Lien described in clause
(vi), (vii), (viii), (ix) or (x) for the same or a lesser arrortnt,provided, however, that no such
Lien shall extend to or cover any properties (other than after-acquired property already,
within the scope of the relevant Lien grant) not theretofore subject to the Lien being
extended, renewed or replaced.
"Person" means any natural Person, corporation, limited liability company, trust,joint venture, association, company, partnership, Governmental Authority or other entity.
"Platform" has the meaning specified in Section S.O2(dXi).
"Pledge Agreemenf' means, for any series of Bonds, the pledge agreement or
custodian agreement (or similar agreement, however designated), among the
Administrative Agent, the Borrower and the applicable Custodian with respect to such
Bonds, setting forth cetain terms relating to the pledge and./or ownership of any such
Bonds pending the remarketing thereof pursuant to the applicable Remarketing Agreement.
"Proiect Finance Debf'means Debt of any Subsidiary of the Borrower (i) that is
(A) not recourse to the Borrower other than with respect to Liens granted by the Borrower
on direct or indirect equity interests in such Subsidiary to secure such Debt and limited
Guaranties of, or equity commitments with respect to, such Debt by the Borrower, which
Liens, limited Guaranties and equity commitments are of a type consistent with other
limited recourse project financings, and other than customary contactual carve-outs to the
non-recourse nature of such Debt consistent with other limited recourse project financings,
and (B) incurred in connection with the acquisition, development, construction or
improvement of any project, single pupose or other fixed assets of such Subsidiary,
including Debt assumed in connection with the acquisition of such assets, or (ii) that
represents an extension, renewal, replacement or refinancing of the foregoing, provided
that, in the case of a replacement or refinancing, the principal amount of such new Debt
shall not exceed the principal amount of the Debt being replaced or refinanced plus l0%
of such principal amount.
UPTE' means a prohibited transaction class exemption issued by the U.S.
Department of Labor, as any such exemption may be amended from time to time.
"Rating Declind'means the occurrence of the following on, or within 90 days after,
the earlier of (i) the occurrence of a Change of Control and (ii) the earlier of (x) the date of
public notice of the occurrence of a Change of Control and (y) the date of the public notice
of the Borrower's (or its direct or indirect parent company's) intention to effect a Change
of Control, which 90-day period will be extended so long as the S&P Rating or Moody's
Rating is under publicly announced consideration for possible downgrading by S&P or
Moody's, as applicable: the S&P Rating is reduced to any rating level below BBB+ or the
Moody's Rating is reduced to any rating level below Baal (or both the S&P Rating and the
Moody's Rating become unavailable).
20
"Recipienf'means (i) the Administrative Agent, (ii) any Lender and (iii) any LC
Issuing Bank, as applicable.
*Registef'has the meaning specified in Section 8.07(c).
,,Reimbursement Amounl',has the meaning specified in Section 2.04(d).
,,Related Documents" means, for any series of Bonds, such Bonds and the
Indenture, the Issuer Agreement, any Remarketing Agreement and any Pledge Agreement
relating to such Bonds.
"Related Parties" means, with respect to any Person, such Person's Affiliates and
the partners, directors, officers, employees, agents, trustees, administrators, managers,
advisors and representatives of such Person and of such Person's Affiliates.
"Remarketing Agenf' means, for any series of Bonds, any Person acting in the
capacity of remarketing agent for such Bonds pursuant to a Remarketing Agreement
relating to such Bonds.
"Remarketing Agreemenf'means, for any series of Bonds, any agreement or other
arrangement pursuant to which the applicable Remarketing Agent has agreed to act in such
"upu"ity with respect to such Bonds tendered for purchase pursuant to the applicable
Indenture.
,'Removal Effective Date" has the meaning specified in Section 7.05(b).
,,Reportable Compliance Evenf'means that the Borrower or any of its Subsidiaries
becomes a Sanctioned Person, or is charged by indictment, criminal complaint or similar
charging instrument, arraigned, or custodially detained in connection with any Anti-
Comrption Law or any predicate crime to any Anti-Comrption Law.
"Requestfor Issuance" means a request made pursuant to Section2.O4 in the form
of Exhibit B.
"Required Lenders" means at any time Lenders owed in excess of 50% of the then
aggregate unpaid principal amount of the Revolving Loans and participation obligations
*ith rirp".t to the LC Outstandings, or, if there are no Outstanding Credits, Lenders having
in excess of 50o/o in interest of the Commitments (without giving effect to any termination
in whole of the Commitments pursuant to Section 6.01). The Commitments, outstanding
Loans and participation obligations with respect to the LC Outstandings for any Defaulting
Lender shall be disregarded in determining Required Lenders at any time.
"Resignation EffeAive Date" has the meaning specified in Section 7.05(a).
"Revolving Loan" means a Loan by a Lender to the Borrower pursuant to Section
2.02 aspart of a Borrowing and refers to a Base Rate Revolving Loan or a Eurodollar Rate
Revolving Loan.
2I
"sanctioned country" means, at any time, a country, region or territory that is the
subject or target of comprehensive Sanctions (at the time of this Agreement, Cuba, Iran,
North Korea, Sudan, Syria and Crimea).
"Sanctioned Person" means, at any time, (a) any Person listed in any Sanctions-
related list of designated Persons maintained by OFAC, the U.S. Department of State or
the U.S. Department of the Treasury or maintained by the United Nations Security
Council, the European Union or Her Majesty's Treasury of the United Kingdom, as may
be amended, supplemented or substituted from time to time, (b) any Person organized or
ordinarily resident or located in a Sanctioned Country or (c) any Person controlled by, or
acting on behalf of, any such Person described in clause (a) or (b). For purposes of this
definition, "control" of a Person shall mean the direct or indirect (x) ownership of or power
to vote, 25o/o or more of the issued and outstanding equity interests having ordinary voting
power for the election of directors of such Person or other Persons performing similar
functions for such Person, or (y) power to direct or cause the direction of the management
and policies of such Person whether by ownership of equity interests, contract or otherwise.
"Sanctions" means economic or financial sanctions or trade embargoes imposed,
administered or enforced from time to time by (a) the U.S. government, including those
administered by OFAC, the U.S. Department of State or the U.S. Department of Treasury,
or (b) the United Nations Security Council, the European Union or Her Majesty's Treasury
of the United Kingdom.
*S&P" means S&P Global Ratings, a business unit of S&p Global, lnc.
*S&P Rating" means, on any date of determination, the rating most recently
announced by S&P with respect to any senior unsecured, non-credit enhanced Debt of the
Borrower or, if such rating is not available, the corporate credit rating of the Borrower most
recently announced by S&P.
USEC" means the U.S. Securities and Exchange Commission.
"sewice" has the meaning set forth in the definition of "Eurodolrar Rate".
*Stated Expiry Date" means the stated expiration date of any Leffer of Credit issued
or deemed to be issued pursuant to this Agreement; provided, however, that no Stated
Expiry Date may be requested or included in any such Letter of Credit where (i) such date
would be later than the fifth Business Daypreceding the Termination Date then applicable
to the Lender that is the LC Issuing Bank for such Letter of Credit, (ii) such date would be
later than one year after the date of issuance of such Letter of Credit (subject, for the
avoidance of doubt, to the ability to provide for an automatic renewal mechanic in
accordance with Section 2.04(a)), or (iii) after taking into account (A) the respective
Termination Dates then in effect with respect to all Lenders on the date of issuance or any
extension of such Letter of Credit, and (B) the respective Stated ExpiryDates then in effect
with respect to all other Letters of Credit then outstanding, the maximum amount of theLC Outstandings under all Letters of Credit (including such Letter of Credit) then
outstanding would exceed the total LC Commitment Amount scheduled to be in effect at
22
any time during the period such Letter of Credit is scheduled to remain in effect, as
determined by the Administrative Agent'
"Subsidiary" of any Person means any corporation, partnership, joint v_enture,
limited liability company, trust or estate of which (or in which) more than 50% of (i) the
issued and outstanding capital stock having ordinary voting power to elect a majority of
the board of directors of such corporation (inespective of whether at the time capital stock
of any other class or classes of su-ch corporation shall or might have voting power upon the
occ111rence of any contingency), (ii) the interest in the capital or profits of such limited
liability compan)! partnership or joint venture or (iii) the beneficial interest in such ffust or
estate is at the time directlyor indirectly owned or controlled by such Person, by such
person and one or more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Taces" means all present or fufure taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges imposed
by any GovernmentafAuthority, including any interest, additions to tax or penalties
applicable thereto.
"Termination Date" means the earlier to occur of (i) June 30,2021, or such later
date that may be established for any Lender from time to time pursuant to Section 2.06
hereof, anA (ii) the date of termination in whole of the Commitments available to the
Borrower pursuant to Section 2.08 or 6.01.
"Trusted'means, for any series of Bonds, the Person acting in the capacity of
trustee for the holders of such Bonds under the Indenture pursuant to which such Bonds
were issued.
"Type" refers to the distinction between Loans bearing interest at the Base Rate and
Loans bearing interest at the Eurodollar Rate.
"(1.5. Persorr" means any Person that is a "United States Person" as defined in
Section 7701(a)(30) of the Internal Revenue Code.
*(1.5, Tox Compliance Certiftcateo' has the meaning assigned to such term in
Section 2.18(e)(ii).
"ll'ithholding Agenf'means the Borrower and the Administrative Agent.
*write-Down and conversion Powers" means, with respect to any EEA
Resolution Authority, the write-down and conversion powers of such EEA Resolution
Authority from time to time under the Bail-ln Legislation for the applicable EEA Member
Country, which write-down and conversion powers are described in the EU Bail-In
Legislation Schedule.
23
SECTION 1,02. Computation of Time Periods.
In this Agreement in the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms.
All accounting terms not specifically defined herein shall be construed in accordance with
generally accepted accounting principles as in effect from time to time ("GAAP'). If any
"Accounting Change" (as defined below) shall occur and such change results in a change in the
calculation of financial covenants, standards or terms in this Agreement, and either the Borrower
or the Required Lenders (through the Administrative Agent) shall request the same to the other
parties hereto in writing, the Borrower and the Administrative Agent shall enter into negotiations
to amend the affected provisions of this Agreement with the desired result that the criteria for
evaluating the Borrower's consolidated financial condition and results of operations shall be
substantially the same after such Accounting Change as if such Accounting Change had not been
made. Once such request has been made, until such time as such an amendment shall have been
executed and delivered by the Borrower, the Administrative Agent and the Required Lenders, all
financial covenants, standards and terms in this Agreement shall continue to be calculated or
construed as if such Accounting Change had not occurred. "Accounting Change" means a change
in accounting principles required by the promulgation of any final rule, regulation, pronouncement
or opinion by the Financial Accounting Standards Board of the American tnstitute of Certified
Public Accountants or, if applicable, the SEC (or successors thereto or agencies with similar
functions).
SECTION 1.04. ClassiJication of Loans and Borrowings.
For purposes of this Agreement, Loans may be classified and referred to by Type (".g., a
"Eurodollar Rate Loan"). Borrowings also may be classified and referred to by Type (e.g., a
"Eurodollar Rate Borrowing").
SECTION 1.05. Other fnterpretive Provisions.
As used herein, except as otherwise specified herein, (i) references to any Person include
its successors and assigns and, in the case of any Govemmental Authority, any Person succeeding
to its functions and capacities; (ii) references to any Applicable Law include amendments,
supplements and successors thereto; (iii) references to specific sections, articles, annexes,
schedules and exhibits are to this Agreement; (iv) words importing any gender include the other
gender; (v) the singular includes the plural and the plural includes the singular; (vi) the words
"including", "include" and "includes" shall be deemed to be followed by the words "without
limitation"; (vii) captions and headings are for ease of reference only and shall not affect the
construction hereof; and (viii) references to any time of day shall be to New York City Time unless
otherwise specified.
24
ARTICLE II
AMOUNTS AI\D TERMS OF THE EXTENSIONS OF CREDIT
SECTION 2.01. The Revolving Loans.
(a) Each Lender severally agrees, on the terms and conditions hereinafter set forth, to
make Revolving Loans to the Borrower from time to time on any Business Day during the period
from the date hereof until the Termination Date applicable to such Lender in an aggregate
outstanding amount not to exceed at any time such Lender's Available Commitment at such time.
Within the limits of each Lender's Commitment and as hereinabove and hereinafter provided,
including without limitation Section 2.01(b), the Borrower may request a Borrowing hereunder,
and repay or prepay Revolving Loans pursuant to Section 2.14 andutilize the resulting increase in
the Avaiiable Commitments for further Extensions of Credit in accordance with the terms hereof.
(b) In no event shall the Borrower be entitled to request or receive any Borrowing that
(i) would exceed the Available Commitments or (ii) would cause the Outstanding Credits to exceed
the Commitments.
SECTION 2.02. Making the Revolving Loans.
(a) Each Borrowing shall be in an amount not less than $1,000,000 (or, if less, the
Available Commitments at such time) or an integral multiple of $100,000 in excess thereof and
shall consist of Revolving Loans of the same Type made on the same day by the Lenders ratably
according to their respective Commitnent Percentages. Each Borrowing shall be made on notice,
given not later than 1:00 P.M. (New York City Time) on the third Business Day prior to the date
of tnr proposed Borrowing in the case of a Borrowing consisting of Eurodollar Rate Revolving
Loans, or not later than 1:00 P.M. (New York City Time) on the date of the proposed Borrowing
in the case of a Borrowing consisting of Base Rate Revolving Loans, by the Borrower to the
Administrative Agent, which shall give to each Lender prompt written notice thereof. Each such
notice of a Revolving Borrowing (a *Notice of Borrowing!') shall be by telephone, confirmed
immediately in writing or facsimile in substantially the form of Exhibit A hereto, specifying therein
the requested (i) Borrowing Date for such Borrowing, (ii) Type of Revolving Loans comprising
such Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the case of a Borrowing
consisting of Eurodollar Rate Revolving Loans, the initial Interest Period for each such Revolving
Loan. Each Lender shall, before 2:00 P.M. (New York City Time) (or, for Borrowings consisting
of Base Rate Revolving Loans for which notice was provided to the Lenders after 12:00 noon
(New York City Time) but no later than 1:00 P.M. (New York City Time), before 3:00 P.M. (New
York City Time)) on the applicable Borrowing Date, make available for the account of its
Applicable Lending Office to the Administrative Agent at the Agent's Account, in same day funds,
such Lender's ratable portion of the Borrowing to be made on such Borrowing Date. After the
Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set
forth in Article III, the Administrative Agent will make such funds available to the Borrower no
later than 3:30 P.M. (New York City Time) in such manner as the Borrower shall have specified
in the applicable Notice of Borrowing.
(b) Anything in subsection (a) above to the contrary nofwithstanding, (i) the Borrower
may not select Eurodollar Rate Revolving Loans for any Borrowing if the aggregate amount of
25
such Borrowing is less than $1,000,000 or ifthe obligation of the Lenders to make Eurodollar Rate
Revolving Loans shall then be suspended pursuant to Section 2.12(b),2.13 or 2.16, and (ii)
Borrowings of more than one Type may be outstanding at the same time;provided, however,there
shall be not more than 10 Borrowings at any one time outstanding.
(c) Each Notice of Borrowing shall be irrevocable and binding on the Borrower. In
the case of any Borrowing that the related Notice of Borrowing specifies is to comprise Eurodollar
Rate Revolving Loans, the Borrower shall indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to fulfill on or before the date specified in such
Notice of Borrowing for such Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Revolving Loan to be made by such Lender as part of such Borrowing when
such Revolving Loan, as a result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received written notice from a Lender
prior to any Borrowing Date or, in the case of a Base Rate Loan, prior to the time of Borrowing,
that such Lender will not make available to the Administrative Agent such Lender's Loan as part
of the Borrowing to be made on such Borrowing Date, the Administrative Agent may, but shall
not be required to, assume that such Lender has made such portion available to the Administrative
Agent on such Borrowing Date in accordance with subsection (a) of this Section 2.02, and the
Administrative Agent may (but it shall not be required to), in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to the extent that such
Lender shall not have so made such Loan available to the Administrative Agent, such Lender and
the Borrower severally agree to repay to the Administrative Agent fonhwith on demand such
corresponding amount, together with interest thereon, for each day from the date such amount is
made available to the Borrower until the date such amount is repaid to the Administrative Agent,
at (i) in the case of the Borrower, the interest rate applicable at the time to Loans comprising such
Borrowing and (ii) in the case of such Lender, the Federal Funds Effective Rate. If such Lender
shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Loan as part of such Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the [,oan to be made by it as part of any
Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan
on the date of such Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Loan to be made by such other Lender on the date of any Borrowing.
SECTION2.03. [Reserved]
SECTION 2.04. Letters of Credit
(a) Subject to the terms and conditions hereof, each LC Issuing Bank agrees to issue
Letters of Credit from time to time for the account of the Borrower (or to extend the stated maturity
thereof or to amend or modify the terms thereof), in an aggregate stated amount not exceeding
such LC Issuing Bank's Fronting Commitment, up to a maximum aggregate stated amount for all
Letters of Credit at any one time outstanding equal to the LC Commitment Amount, on not less
than two Business Days' prior notice thereof by delivery of (x) a Request for Issuance to the
26
Administrative Agent and (y) such LC Issuing Bank's standard form of Letter of Credit application
for the requested Letter of Credit (including, for direct pay Letters of Credit, any reimbursement
ugr".*"r,f or other standard form required by such LC Issuing Bank) to the letter of credit
department of such LC Issuing Bank for the account of the Borrower. Each Letter of Credit shall
be issued in a form acceptable to the applicable LC Issuing Bank. Each Request for Issuance shall
specify (i) the identity of the applicable LC Issuing Bank, (ii) the date (which shall be a Business
OuVl of issuance of such Letter of Credit (or the date of effectiveness of such extension,
modification or amendment) and the Stated Expiry Date thereof, (iii) the proposed stated amount
of such Letter of Credit (which amount (A) shall not be less than $100,000 and (B) may be subject
to any automatic increase and reinstatement provisions), (iv) the name and address of the
beneficiary of such Letter of Credit and (v) a statement of drawing conditions applicable to such
Letter of iredit, and if such Request for Issuance relates to an amendment or modification of a
Letter of Credit, it shall be accompanied by the consent of the beneficiary of the Letter of Credit
thereto (except in the case of an extension of the Stated Expiry Date of any Bond Letter of Credit
where no consent of the beneficiary is required for such extension). If so requested by the
Borrower, a Letter of Credit mayprovide that it is automatically renewable for additional one-year
periods if subject to an ability of the applicable LC Issuing Bank to not renew by giving notice of
ih" ru*" to the beneficiary of such Letter of Credit. Each Request for Issuance shall be irrevocable
unless modified or rescinded by the Borrower prior to the issuance by the applicable LC Issuing
Bank of the requested Letter of Credit or prior to the effectiveness of the requested extension,
modification or amendment to a Letter of Credit, as applicable. Upon fulfillment of the applicable
conditions precedent and the other requirements set forth herein, the relevant LC Issuing Bank
shall issue (or extend, amend or modify) such Letter of Credit and provide notice and a copy
thereof to the Administrative Agent, which shall promptly furnish copies thereof to the Lenders
that shall so request; provided that the LC Issuing Bank shall not issue or amend any Leffer of
Credit if such LC Issuing Bank has received notice from the Administative Agent that the
applicable conditions precedent have not been satisfied. The Existing Letters of Credit shall, as of
the Closing Date, be deemed to have been issued as Letters of Credit hereunder and subject to and
governed by the terms of this Agreement. (i) On the Closing Date with respect to all Existing
Letters of Credit and (ii) upon the date of issuance with respect to all other Letters of Credit, each
Lender shall be deemed, without further action by any party hereto, to have irrevocably and
unconditionally purchased from such LC Issuing Bank without recourse a participation in such
Letter of Credii equal to such Lender's Commitment Percentage of the aggregate amount available
to be drawn under such Letter of Credit. Each Lender's participation obligations in respect of
Existing Letters of Credit shall be governed by this Agreement. Upon each modification of a
Leffer of Crealt by any LC Issuing Bank which modifies the aggregate amount available to be
drawnunder such Letter of Credit, such LC Issuing Bank and the Lenders shall be deemed, without
fuither action by ary party hereto, to have purchased or sold, as appropriate, participations in such
Letter of Credit such that each Lender's participation in such Letter of Credit shall equal such
Lender's Commitment Percentage of such modified aggregate amount available to be drawn under
such Letter of Credit. Each Letter of Credit shall utilize the Commitment of each Lender by an
amount equal to the amount of such participation. Without limiting the foregoing, mY LC Issuing
Bank that issues a Bond Letter of Credit agrees that (i) all Bonds pledged to such LC Issuing Bank
pursuant to any applicable Pledge Agreement or otherwise registered in the name of such LC
issuing Bank pursuant to the other Related Document will be held for the benefit of such LC
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Issuing Bank and the Lenders and (ii) to apply and/or remit all proceeds from the sale or
remarketing of such Bonds in accordance with Section 2.17(0.
(b) The Borrower may from time to time appoint one or more additional Lenders (with
the consent of any such Lender, which consent may be withheld in the sole discretion of each
Lender) to act, either directly or through an Affiliate of such Lender, as an LC Issuing Bank
hereunder. Any such appointment and the terms thereof shall be evidenced in a separate written
agreement executed bythe Borrower and the relevant LC Issuing Bank, a copy of which agreement
shall be delivered by the Borrower to the Administrative Agent. The Administrative Agent shall
give prompt notice of any such appointment to the other Lenders. Upon such appointment, if and
for so long as such Lender shall have any obligation to issue any Letter of Credit hereunder or any
Letter of Credit issued by such Lender shall remain outstanding, such Lender shall be deemed to
be, and shall have all the rights and obligations of an"LC Issuing Bank" under this Agreement.
(c) No Letter of Credit shall be requested, issued or modified hereunder if, after the
issuance or modification thereof, (i) the Outstanding Credits would exceed the Commitrnents then
scheduled to be in effect until the latest Termination Date, (ii) that portion of the LC Outstandings
arising from Letters of Credit issued by an LC Issuing Bank would exceed the amount of such LC
Issuing Bank's Fronting Commitment or (iii) the LC Outstandings would exceed the LC
Commitment Amount. No LC Issuing Bank shall be under any obligation to issue any Letter of
Credit if any order, judgment or decree of any Governmental Authority shall by its terms purport
to enjoin or restrain such LC Issuing Bank from issuing such Letter of Credit, or any law applicable
to such LC Issuing Bank or any request or directive (whether or not having the force of law) from
any Governmental Authority with jurisdiction over such LC Issuing Bank shall prohibit, or request
that the LC Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the LC Issuing Bank with respect to such Letter of Credit
any restriction, reserve or capital requirement (for which the LC Issuing Bank is not otherwise
compensated or required to be compensated hereunder), which restriction, reserve or capital
requirement was not in effect on the date hereof, or shall impose upon the LC Issuing Bank any
loss, cost or expense (not reimbursed or required to be reimbursed) that was not applicable on the
date hereof and that the LC Issuing Bank in good faith deems material to it.
(d) The Borrower hereby agrees to pay to the Administrative Agent for the account of
each LC Issuing Bank and each Lender that has funded its participation in the reimbursement
obligations of the Borrowerpursuant to subsection (e) below, on demand made by such LC Issuing
Bank to the Borrower, on and after each date on which such LC Issuing Bank shall pay any amount
under any Letter of Credit issued by such LC Issuing Bank, a sum equal to the amount so paid (the
"Reimbursement Amounf'). Any Reimbursement Amount shall bear interest, payable on
demand, from the date so paid by such LC Issuing Bank until repayment to such LC Issuing Bank
in full at a fluctuating interest rate per annum equal to the interest rate applicable to Base Rate
Loans plus, if any amount paid by such LC Issuing Bank under a Letter of Credit is not reimbursed
by the Borrower within three Business Days, 2%o. The Borrower may satisfy its obligation
hereunder to repay the Reimbursement Amount by requesting a Borrowing under Section 2.02
(and which Borrowing shall be subject to the conditions in Section 2.02) n the amount of such
Reimbursement Amount, and the proceeds of such Borrowing may be applied to satisfu the
Borrower's obligations to such LC Issuing Bank or the Lenders, as the case may be. The
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Borrower's obligation to pay any Reimbursement Amount in respect of the Existing Letters of
Credit shall be governed by the terms of this Agreement.
(e) If any LC Issuing Bank shall not have been reimbursed in full for any
Reimbursement Amount in respect of a Letter of Credit issued by such LC Issuing Bank on the
date of such payrnent, such LC Issuing Bank shall give the Administrative Agent and each Lender
prompt notici thereof (an "LC Payment Notice") no later than 12:00 noon (New York City Time)
bn thi Business Day immediately succeeding the date of such payment by such LC Issuing Bank.
Each Lender shall fund the participation that such Lender purchased pursuant to Section 2-0a@)
by payng to the Administra-tive Agent for the account of such LC Issuing Bank an amount equal
to iuch Lender's Commitment Percentage of such Reimbursement Amount paid by such LC
Issuing Bank, plus interest on such amount at arateper almum equal to the Federal Funds Effective
Rate, ior the first three days from the date of the payment by such LC Issuing Bank, and, thereafter,
until the date of paymentio such LC Issuing Bank by such Lender, at arate of interest equal to the
rate applicable to Base Rate Loans. Each such payment by a Lender shall be made not later than
f :OO ir.tvt. (New York City Time) on the later to occur of (i) the Business Day immediately
following the date of such payment by such LC Issuing Bank and (ii) the Business Day on which
such Lender shall have reieived an LC Payment Notice from such LC Issuing Bank. Each
Lender's obligation to make each such payment to the Administrative Agent for the account of
such LC Issuing Bank shall be several and shall not be affected by the occrurence or continuance
of a Default or the failure of any other Lender to make any payment under this Section 2'0a@).
Each Lender further agrees that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.
(0 The failure of any Lender to make any payment to the Administrative Agent for the
account of any LC Issuing Bank in accordance with subsection (e) above shall not relieve any
other Lender of its obligation to make payment, but no Lender shall be responsible for the failure
of any other Lender. If any Lender (a"non-performing Lendef') shall fail to make any payment
to the Administrative Agent for the account of any LC Issuing Bank in accordance with subsection
(e) above, then for so long as such failure shall continue, such LC Issuing Bank shall be deemed,
for purposes of Sections 6.01 and 8.01 hereof, to be a Lender owed a Borrowing in an amount
.q.rut to the outstanding principal amount due and payable by such non-performing Lender to the
Administrative Agent for the account of such LC Issuing Bank pursuant to subsection (e) above.
Any non-performing Lender and the Borrower (without waiving any claim against such non-
performing Lender for such non-performing Lender's failure to fund its participation in the
ieimbursement obligations of the Borrower under subsection (e) above) severally agree to pay to
the Administrative Agent for the account of such LC Issuing Bank forthwith on demand such
amount, together with interest thereon for each day from the date such non-performing Lender
would have funded its participation had it complied with the requirements of subsection (e) above
until the date such amount is paid to the Administrative Agent at (i) in the case of the Borrower,
the interest rate applicable at the time to Base Rate Loans plus, if any amount paid by such LC
Issuing Bank under a Letter of Credit is not reimbursed by the Borrower within three Business
Days,1%o,in accordance with Section 2.04(d), and (ii) in the case of such non-performing Lendeq
the-Federal Funds Effective Rate, for the first three days and, thereaftet, at a rate of interest equal
to the rate applicable to Base Rate Loans.
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(g) The payment obligations of each Lenderunder Section 2.Oa@) and of the Borrower
under this Agreement in respect of any payment under any Letter of Credit shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any other
agreement or instrument relating thereto or to such Letter of credit;
(ii) any amendment or waiver of, or any consent to departure from, the terms of
this Agreement or such Letter of Credit;
(iii) the existence of any claim, set-off, defense or other right that the Borrower
may have at any time against any beneficiary, or any transferee, of such Letter of Credit
(or any Persons for whom any such beneficiary or any such transferee may be acting), any
LC Issuing Bank, or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby, thereby or by such Letter of Credit, or any unrelated
transaction;
(iv) any statement or any other document presented under such Leffer of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(v) payment in good faith by any LC Issuing Bank under the Letter of Credit
issued by such LC Issuing Bank against presentation of a draft or certificate that does not
comply with the terms of such Letter of Credit;
(vi) the use that may be made of any Letter of Credit by, or any actor omissionof the beneficiary of any Letter of Credit (or any Person for which the beneficiary may be
acting); or
(vii) any other circumstance or happening whatsoever, whether or not similar to
any of the foregoing.
(h) Without limiting any other provision of this Section 2.04, for puposes of this
Section 2.04 any LC Issuing Bank may rely upon any oral, telephonic, telegraphic, facsimile,
electronic, written or other communication believed in good faith to have been authorized by the
Borrower, whether or not given or signed by an authorized Person of the Borrower.
(i) The Borrower assumes all risks of the acts and omissions of any beneficiary or
transferee of any Letter of Credit. Neither any LC Issuing Bank, the Lenders nor any of their
respective officers, directors, employees, agents or Affiliates shall be liable or responsible for, and
the Borrower's reimbursement obligation in respect of any Letter of Credit shall not be affected
bV, (i) the use that maybe made of such Letterof Credit or any acts or omissions of anybeneficiary
or transferee thereof in connection therewith; (ii) the validity, sufficiency or genuineness of
documents, or of any endorsement thereon, even if such documents should prove to be in any or
all respects invalid, insufficient, fraudulent or forged; (iii) payment by any LC Issuing Bank
against presentation of documents that do not comply with the terms of such Letter of Credit,
including failure of any documents to bear any reference or adequate reference to such Letter of
30
Credit; (iv) any dispute between or among the Borrower, any of its Affiliates, the beneficiary of
any Letter of Credii or any financing institution or other party to whom any Letter of Credit may
be transferred or any claims or defenses whatsoever of the Borrower or of its Affiliates against the
beneficiary of any Letter of Credit or any such transferee; (v) any eror, omission, intemrption or
delay in transmission, dispatch or delivery of any message or advice, however ffansmitted, in
connection with any Letter of Credit; or (vi) any other circumstances whatsoever in making or
failing to make payment under such Letter of Credit, except that the Borrower and each Lender
shall have the rightto bring suit against each LC Issuing Bank, and each LC Issuing Bank shall be
liable to the Borrower and any Lender, to the extent of any direct, as opposed to consequential,
damages suffered by the Borrower or such Lender that the Borrower or such Lender proves, in a
court of competent jurisdiction by final and nonappealable judgment, were caused by such LC
Issuing Bankis willful misconduct or gross negligence. In furtherance and not in limitation of the
forego-ing, each LC Issuing Bank may accept sight drafts and accompanylng certificates presented
under ttri Letter of Credit issued by such LC Issuing Bank that appear on their face to be in
substantial compliance with the terms and conditions of the Letter of Credit, without responsibility
for further investigation, regardless of any notice or information to the contrary, and payment
against such documents shall not constitute willful misconduct or gross negligence by such LC
Issuing Bank. Notwithstanding the foregoing, no Lender shall be obligated to indemnit/ the
Borrower for damages caused by any LC Issuing Bank's willful misconduct or gross negligence.
0) In the event of any inconsistency between the terms and conditions of this
Agreement and the terms and conditions of any application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, an LC Issuing Bank relating to any Letter of
Credit issued by such LC Issuing Bank (including, for the avoidance of doubt, any Existing Letter
of Credit), the ierms and conditions of this Agreement shall control. Unless otherwise specified
herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of
such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of
Credit that, by its terms or the terms of any application or other agleement related thereto, provides
for one or more automatic increases in the stated amount thereof, the amount of such Letter of
Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving
effect to all such increases, whether or not such maximum stated amount is in effect at such time.
(k) Any LC Issuing Bank may resign at any time by giving written notice thereof to
the Administrative Agent, Lenders, the other LC Issuing Banks (if any) and the Borrower, provided
that (i) there are no Letters of Credit outstanding with respect to such LC Issuing Bank at such
time or (ii) unless the Borrower shall have agreed otherwise, another Lender or Affiliate thereof
reasonably acceptable to the Borrower has agreed to serve as an LC Issuing Bank and commits in
writing toissue one or more Letters of Credit in an aggregate amount at least equal to those of the
resigrring LC Issuing Bank. After the resignation of an LC Issuing Bank hereunder, such resigning
LC Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations
of an LC Issuing Bank under this Agreement and the other Loan Documents with respect to Letters
of Credit issued by it prior to such resignation, but shall not be required to issue additional Letters
of Credit or to extend, renew or increase any existing Letter of Credit. Upon any such resignation,
the Borrower and the resigning LC Issuing Bank may agree to replace or terminate any outstanding
Letters of Credit issued by such LC Issuing Bank and to designate one or more Lenders as LC
Issuing Banks to replace such LC Issuing Bank.
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SECTION 2.05. Fees.
(a) The Borrower agrees to pay to the Administrative Agent for the account of each
Lender a commitnent fee on the aggregate unused amount of such Lender's Commitment (i) from
the date hereof in the case of each Initial Lender and (ii) from the effective date specified in the
Assignment and Assumption pursuant to which it became a Lender in the case of each other
Lender, in each case, until the latest Termination Date applicable to such Lender, payable quarterly
in arrears on the last day of each March, June, September and December, commencing iune 3d,
2018, and ending on such Termination Date. The commitment fee for any period will be equal to
the Commitment Fee Rate in effect from time to time during such period, times an amouniequalto the Commitments minus the aggregate principal amount of Loans and Letters of Credit
outstanding during such period.
(b) The Borrower agrees to pay the fees payable by the Borrower in such amounts and
on such terms as set forth in the Fee Letter.
(c) The Borrower agrees to pay to the Administrative Agent for the account of each
Lender a fee (the *LC Fee") on the average daily aggregate principal amount of each such Lender's
Commitment Percentage of the LC Outstandings (i) from the date hereof in the case of each Initial
Lender, and (ii) from the effective date specified in the Assignment and Assumption pursuant to
which it became a Lender, in the case of each other Lender, in each case until the later to occur of
(x) the Termination Date applicable to such Lender and (y) the date on which no Letters of Credit
are outstanding, payable quarterly in arrears on the last day of each March, June, September and
December (commencing on June 30, 2018), and on such later date, at arate equal at all times to
the Applicable Margin in effect from time to time for Eurodollar Rate Revolving Loans.
(d) The Borrower agrees to pay to the Administrative Agent for the account of each
LC Issuing Bank, (i) a fee (the"LC Fronting Fee-) equal to 0.20% of the stated amount of each
Letter of Credit issued by such LC Issuing Bank hereunder, payable quarterly in arrears on the last
day of each March, June, September and December (commencing on June 30, 2018) and ending
on the Termination Date or such later date on which no such letter of credit issued by such LC
Issuing Bank shall be outstanding, with the calculation based on the actual number of days elapsed
in a year of 360 days and (ii) customary issuance, maintenance, drawing and adminisfration-fees
in respect of such letters of credit.
(e) The Borrower shall pay to the Administrative Agent, for its own account, the annual
administrative fee at the times and in the amount set forth in the Agent Fee Leffer.
SECTION 2.06. Extension of the Termination Date.
(a) During the period from July t, 2018 until the date that is 30 days prior to the then-
applicable Termination Date, the Borrower may request by written notice made to the
Administrative Agent (which shall promptly notify the Lenders thereof) a one-year extension of
the Termination Date applicable to each Lender. Each Lender shall notitr the Administrative
Agent by the date that is 30 days after the Administrative Agent provides the Lenders with written
notice of the Borrower's extension request that either (A) such Lender declines to consent to
32
extending the Termination Date or (B) such Lender consents to extending the Termination Date.
Any Lenier not responding within the above time period shall be deemed to have declined to
extlnd the Termination Daie. The consent of a Lender to any such extension shall be in the sole
discretion of such Lender. The Administrative Agent shall, after receiving the notifications from
all of the Lenders or the expiration of such period, whichever is earlier, notiS the Borrower and
the Lenders of the results thereof. The Borrower may request no more than one extension pursuant
to this Section.
(b) If any Lender declines, or is deemed to have declined, to consent to such request
for extension (each a "Declining Lendef'), the Borrower shall have the right to replace such
Declining Lender with an Eligible Assignee in accordance with Section 2.20(b). Any Lender
replacin{ a Declining Lender rhatt b" deemed to have consented to such request for extension
(regardless of when such replacement is effective) and shall not be deemed to be a Declining
Lender.
(c) If the Required Lenders have consented to the extension of the Termination Date,
the Termination Date ofiach Lender that consented to the extension shall be extended to the date
that is one year after such Lender's then-effective Termination Date, effective as of the date to be
determined by the Administrative Agent and the Borrower (the "Ertension EffeAive Date");
provided, thaino such extension shall be effective prior to a date that would increase the remaining
ienor of any Loans or Commitments hereunder beyond 3 years and 2 months. On or prior to the
Extension nffective Date, the Borrower shall deliver to the Administrative Agent, in form and
substance reasonably satisfactory to the Administrative Agent (i) the resolutions of the Borrower
authorizing such exiension and all Governmental Approvals (if any) required in connection with
such extension, certified as being in effect as of the Extension Effective Date and the related
incumbency certificate of the Borrower, (ii) a favorable opinion of counsel for the Borrower as to
such matters as any Lender through the Administrative Agent may reasonably request and (iii) a
certificate of the Borrower stating that on and as of such Extension Effective Date, and after giving
effect to the extension to be effective on such date, all conditions precedent to an Extension of
Credit under Section 3.02 aresatisfied. On each Extension Effective Date, each Declining Lender
being replaced by the Borrower pursuant to Section 2.06(b) shall have received payment in fulI of
the principal amount of all Loans outstanding owing to such Declining Lender and all interest
thereon urra il fees and other amounts (including, without limitation, any amounts payable
pursuant to Section S.0a(c)) payable to such Declining Lender accrued through such Extension
Effective Date. Promptly following such Extension Effective Date, the Administrative Agent shall
distribute an amended Sihedule I to this Agreement (which shall thereafter be incorporated into
this Agreement) to reflect any changes in the Lenders, the Commitments and each Lender's
Commitment Percentage as of such Extension Effective Date.
(d) Each LC Issuing Bank may, in its sole discretion, elect not to serve in such capacity
following any extension of the Termination Date; provided that (i) the Borrower and the
Administrative Agent may appoint a replacement for such resigning LC Issuing Bank, as the case
may be, and (ii) whether suchreplacement is appointed shall not otherwise affect the extension of
the Termination Date.
JJ
SECTION 2.07. Increase of the Commitments.
(a) The Borrower may, from time to time, request by written notice to the
Administrative Agent to increase the Commitments by a maximum aggregate amount for all such
increases of up to $300,000,000, by designating one ormore Lenders or other financial institutions
(that will become Lenders), in each case, meeting the requirements set forth in the definition of
Eligible Assignee, that agree to accept all or a portion of such additional Commitments (each a
"Designated Lender").
(b) The Administrative Agent shall promptly notify the Designated Lenders of the
Borrower's request pursuant to subsection (a) above. Each Designated Lender shall notify the
Administrative Agent by the date specified by the Administrative Agent (which date shall be a
Business Day) that either (A) such Designated Lender declines to accept its additional
Commitments or (B) such Designated Lender consents to accept the offered Commifinents. Any
Designated Lender not responding on or prior to the date specified by the Administrative Agent
shall be deemed to have declined to accept the offered Commitments. The Administrative Agent
shall, after receiving the notifications from all of the Designated Lenders or following the date
specified in the notice to such Designated Lenders, whichever is earlier, notiS the Borrower and
the Lenders of the results thereof and the effective date of any additional Commitments. The
effectiveness of such additional Commitnents shall be subject to the condition precedent that the
Borrower shall have delivered to the Administrative Agent (i) the resolutions of the Borrower
authorizing such additional Commitments and all Govemmental Approvals (if any) required in
connection with such additional Commitments, certified as being in effect as of the effeciive date
of such additional Commitrnents, (ii) a favorable opinion of counsel for the Borrower as to such
matters as any Lender through the Administrative Agent may reasonably request and (iii) a
certificate signed by a duly authorized officer of the Borrower, dated as of the effective date of
such additional Commitrnents, stating that all conditions precedent to an Extension of Credit have
been satisfied on and as ofsuch effective date.
(c) Promptly following the effective date of any Commitrnent increase pursuant to this
Section 2.07, (i) the Administrative Agent shall dishibute an amended Schedule I to this
Agreement (which shall thereafter be incorporated into this Agreement) to reflect any changes in
Lenders, the Commitments and each Lender's Commitment Percentage as of such effective date
and (ii) the Borrower shall prepay the outstanding Borrowings (if any) in full, and shall
simultaneously make new Borrowings hereunder in an amount equal to such prepayment, so that,
after giving effect thereto, the Borrowings are held ratably by the Lenders in accordance with their
respective Commitments (after giving effect to such Commitment increase). Prepayments made
under this clause (c) shall not be subject to the notice requirements of Section 2. 14.
(d) Notwithstanding any provision contained herein to the contrary, from and after the
date of any Commitment increase and the making of any Loans on such date pursuant to clause
(cXii) above, all calculations and payments of fees and of interest on the Loans shall take into
account the actual Commitment of each Lender and the principal amount outstanding of each Loan
made by such Lender during the relevant period of time.
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SECTION 2,08. Termination or Reduction of the Comrnitments.
(a) The Borrower shall have the right, upon at least three Business Days' notice to the
Administrative Agent, to terminate in whole or reduce ratably in part the Available Commitments,
provided that (i) iach partial reduction shall be in the aggregate amount of $10,000,000 or an
integral multipie of $5,000,000 in excess thereof and (ii) no such termination or reduction shall be
made that would reduce the aggregate Commitrnents to an amount less than the Outstanding
Credits on the date of such termLaiion or reduction. Subject to the foregoing, any reduction of
the Commitments to an amount below $300,000,000 shall also result in a reduction of the LC
Commitment Amount to the extent of such deficit (and if such reduction would cause the LC
Commitment Amount to be less than the aggregate Fronting Commitments, with automatic
reductions in the amount of each Fronting Commitment ratably in proportion to the amount of
such reduction of the LC Commitment Amount unless, in the case of any LC Issuing Bank, such
LC Issuing Bank consents otherwise). Each such notice of termination or reduction shall be
irrevocabll; provided, however,that a notice of termination delivered pursuant to this Section 2.08
may state that such notice is conditioned upon the effectiveness of other credit facilities, in which
casl such notice may be revoked by the Borrower (by notice to the Administrative Agent on or
prior to the effectivsdate specified in the notice of termination) if such condition is not satisfied.
(b) The Borrower may terminate the unused amount of the Commitrnent of any Lender
that is a'Defaulting Lender upon not less than three Business Days' prior notice to the
Administrative Agent (which shall promptly notiff the Lenders thereof), and in such event the
provisions of Section Z.Zt1ayi1 will apply to all amounts thereafter paid by the Borrower for the
account of such Defaulting Lender under this Agreement (whether on account of principal, interest,
fees, indemnity or other amounts); provided that (i) no Event of Default shall have occurred and
be continuing, and (ii) such termination shall not be deemed to be a waiver or release of any claim
the Borrowei, the Administrative Agent, any LC Issuing Bank or any Lender may have against
such Defaulting Lender.
(c) The Commitment of each Lender shall automatically terminate on the Termination
Date applicable to such Lender as provided in Section 2.06.
(d) Once terminated, a Commitment or any portion thereof may not be reinstated.
SECTION 2.09. RePaYment of Loans.
(a) The Borrower shall repay to the Administrative Agent for the account of each
Lender on the Termination Date applicable to such Lender the aggregate principal amount of the
Revolving Loans made to the Borrower by such Lender then outstanding. Without limiting the
foregoingl the Borrower shall also repay (to the Administrative Agent for the account of the
fenaers) nevolving Loans, in each ease, to the extent and at the time required pursuant to the terms
of any applicable Gor.--.ntal Approval relating to the Borrower's ability to incur Debt.
(b) If at any time the aggregate principal amount of Outstanding Credits exceeds the
Commitments, the Borrower shall pay or prepay so much of the Borrowings and/or Cash
Collateralize the LC Outstandings as shall be necessary in order that the Outstanding Credits minus
35
the principal amount of Cash Collateral securing the LC Outstandings will not exceed the
Commitrnents.
SECTION 2.10, Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness to such Lender resulting from each Loan made by such
Lender from time to time, including the amounts ofprincipal and interest payable and paid to such
Lender from time to time under this Agreement.
(b) The Administrative Agent shall maintain accounts in which it will record (i) the
amount of each Loan made hereunder, the Type of each Loan made and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable or to become due
and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received
by the Administrative Agent hereunder from the Borrower and each Lender's share thereof.
(c) The entries made in the accounts maintained pursuant to subsections (a) and (b) of
this Section 2.10 shall, to the extent permitted by Applicable Law, be prima facie evidence of the
existence and amounts of the obligations therein recorded; provided, however, that the failure of
any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in
any manner affect the obligations of the Borrower to repay the Loans and interest thereon in
accordance with their terms.
(d) Any Lender may request that any Loans made by it be evidenced by one or more
promissory notes. In such event, the Borrower shall prepare, execute and deliver to such Lender
one or more promissory notes payable to such Lender (or, if requested by such Lender, to such
Lender and its assignees) and in a form reasonably satisfactory to the Administrative Agent.
Thereafter, the Loans evidenced by such promissory notes and interest thereon shall at all times
(including after assignment pursuant to Section 8.07) be represented by one or more promissory
notes in such form payable to the payee named therein.
SECTION 2.11. Interest on Loans.
The Borrower shall pay interest on the unpaid principal amount of each Loan from the date
of such Loan until such principal amount shall be paid in full, at the following rates per annrm:
(a) Base Rate Loans. During such periods as such Loan is a Base Rate Revolving
Loan, a rate per annum equal at all times to the sum of (x) the Base Rate plus (y) the Applicable
Margin for Base Rate Loans in effect from time to time, payable in arrears quarterly on the last
day of each March, June, September and December during such periods and on the date such Base
Rate loan shall be Converted or paid in full.
(b) Eurodollar Rate Revolving Loans. During such periods as such Revolving Loan
is a Eurodollar Rate Revolving Loan, a rate per annum equal at all times during each Interest Period
for such Revolving Loan to the sum of (x) the Eurodollar Rate for such lnterest Period for such
Revolving Loan plus (y) the Applicable Margin for Eurodollar Rate Revolving Loans in effect
from time to time, payable in a:rears on the last day of such lnterest Period and, if such lnterest
Period has a duration of more than three months, on each day that occurs during such Interest
36
Period every three months from the first day of such lnterest Period and on the date such Eurodollar
Rate Revolving Loan shall be Converted or paid in fuIl.
(c) Additionat Interest on Eurodollar Rate Revolving Loans. The Borrower shall pay
to each Lender, so long as such Lender shall be required under regulations of the Board of
Govemors of the Federal Reserve System to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities, additional interest on the unpaid principal
amount oleach Eurodollar Rate Revolving Loan of such Lender, from the date of such Revolving
Loan until such principal amount is paid in full, at an interest rate per annum equal at all times to
the remainde. obtuined by subtracting (i) the Eurodollar Rate for the Interest Period for such
Revolving loan from (ii) the rate obtained by dividing such Eurodollar Rate by a percentage equal
to 100% *inut the Eurodollar Rate Reserve Percentage of such Lender for such Interest Period,
payable on each date on which interest is payable on such Revolving Loan. Such additional
interest shall be determined by such Lender and notified to the Borrower through the
Administrative Agent.
SECTION 2.12. Interest Rate Determination.
(a) The Administrative Agent shall give prompt notice to the Borrower and the Lenders
of the applicable interest rate determined by the Administrative Agent for purposes of Section
2.ll(a) oi (U), and, if applicable, the rate for the purpose of determining the applicable interest rate
under Section 2.1 1(c).
(b) If, with respect to any Eurodollar Rate Revolving Loans, (i) the Required Lenders
notify the Administrative Agent that the Eurodollar Rate for any Interest Period for such Revolving
Loans will not adequately reflect the cost to such Required Lenders of making, funding or
maintaining their respective Eurodollar Rate Revolving [oans for such Interest Period, or (ii) the
Administrative Agent determines that adequate and fair means do not exist for ascertaining the
applicable interesi rate on the basis provided for in the definition of Eurodollar Rate (including,
without limitation, because the Eurodollar Rate is not available or published on a current basis),
the Administrative Agent shall forthwith so notify the Borrower and the Lenders, whereupon (A)
each Eurodollar Rate Revolving Loan will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Revolving Loan, and (B) the obligation of the
Lenders to make, or to Convert Revolving Loans into, Eurodollar Rate Revolving Loans shall be
suspended until the Administrative Agent shall notiff the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
(c) If at any time (i) the circumstances set forth in clause (bxii) above have arisen and
the Administrative Agent determines (which determination shall be conclusive absent manifest
error), or the Borrower notifies the Administrative Agent that the Borrower has determined, that
such circumstances are unlikely to be temporary, (ii) the circumstances set forth in clause (bxii)
above have not arisen but the supervisor for the administrator of the Eurodollar Rate or a
Govemmental Authority having jurisdiction over the Administrative Agent has made a public
statement identifying a specific date after which the Eurodollar Rate shall no longer be used for
determining interest rates for loans, or (iii) the Administrative Agent and the Borrower determine
that syndicated credit facilities currently being entered into or amended are incorporating or
adopting a new benchmark reference rate to replace the Eurodollar Rate, then the Administrative
37
Agent and the Borrower may amend this Agreement to establish an altemate benchmark reference
rate (including any mathematical or other adjustrnents to the benchmark (if any) incorporated
therein) that gives due consideration to the then prevailing market convention for determining a
benchmark reference rate for syndicated loans in the United States at such time (any such proposed
rate, a "Eurodollar Successor Rate"), and in connection therewith to incorporate any proposed
conforming changes to the definition of "Base Rate," "Interest Period," timing and frequency of
determining rates and making payments of interest and other administrative matters as may be
appropriate, as agreed between the Administrative Agent and the Borrower, to reflect the adoption
of such Eurodollar Successor Rate and to permit the administration thereof by the Administrative
Agent in a manner substantially consistent with market practice (or, if the Administrative Agent
determines that adoption of any portion of such market practice is not administratively feasible or
that no market practice for the administration of such Eurodollar Successor Rate yet exists, in such
other manner of administration as the Administrative Agent determines with the consent of the
Borrower). Notwithstanding anything to the contrary in Section 8.01, such amendment shall
become effective without any further action or consent of any other party to this Agreement so
long as the Administrative Agent shall not have received, within five (5) Business Days of the date
notice of such Eurodollar Successor Rate is provided to the Lenders, a written notice from the
Required Lenders stating that such Required Lenders object to such amendment, provided that any
such objection shall be reasonable and made in good faith. tn the case of the circumstances
described in subclause (i) or (ii) ofthe first sentence ofthis clause (c), until an Eurodollar Successor
Rate shall be determined in accordance with this clause (c) (but, in the case of the circumstances
described in such subclause (ii), only to the extent the Eurodollar Rate for such lnterest Period is
not available or published at such time on a current basis), (x) any notice from the Borrower that
requests the Conversion of any Borrowing to, or continuation of any Borrowing as, a Borrowing
consisting of Eurodollar Rate Revolving Loans shall be ineffective and (y) if any Notice of
Borrowing requests a Borrowing consisting of Eurodollar Rate Revolving Loans, such Borrowing
shall be made a Borrowing consisting of Base Rate Loans; provided that, if such Eurodollar
Successor Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this
Agreement.
SECTION 2.13. Conversion of Revolving Loans.
(a) Voluntary. The Borrower may on any Business Day, upon notice given to the
Administrative Agent not later than 12:00 noon (New York City Time) on the third Business Day
prior to the date of the proposed Conversion and subject to the provisions of Sections 2.12 and,
2.l6,Convert all or anypart of Revolving Loans of one Type comprising the same Borrowing into
Revolving Loans of the other Type or of the same Tlpe but having a new Interest Peiod; provided,
however, that any Conversion of Eurodollar Rate Revolving Loans into Base Rate Revolving
Loans shall be made only on the last day of an Interest Period for such Eurodollar Rate Revolving
Loans, any Conversion of Base Rate Revolving Loans into EurodollarRate Revolving Loans shall
be in an amount not less than the minimum amount specified in Section 2.02(b) and no Conversion
of any Revolving Loans shall result in more separate Borrowings than permitted under Section
2.02(b). Each such notice of a Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion, (ii) the Revolving Loans to be Converted, and (iii) if such
Conversion is into Eurodollar Rate Revolving Loans, the duration of the initial Interest Period for
each such Revolving Loan. Each notice of Conversion shall be irrevocable and binding on the
Borrower.
38
(b) Mandatory.
(i) If the Borrower shall fail to select the Type of any Revolving loan or the
duration of any lnterest Period for any Borrowing comprising Eurodollar Rate Revolving
Loans in accordance with the provisions contained in the definition of "lnterest Period" in
Section 1.01 and Section 2.13(a), or if any proposed Conversion of a Borrowing that is to
comprise Eurodollar Rate Revolving Loans upon Conversion shall not occur as a result of
the circumstances described in subsection (c) below, or if an Event of Default has occurred
and is continuing and Eurodollar Rate Revolving Loans are outstanding, the Administrative
Agent will forthwith so notiff the Borrower and the Lenders, and (i) such Revolving Loans
will automatically, on the last day of the then existing Interest Period therefor, Convert into
Base Rate Loans and (ii) the obligation of the Lenders to make, or to Convert Revolving
Loans into, Eurodollar Rate Revolving Loans shall be suspended.
(ii) On the date on which the aggregate unpaid principal amount of Eurodollar
Rate Revolving Loans comprising any Borrowing shall be reduced, by payment or
prepayment or otherwise, to less than $10,000,000, such Revolving Loans shall
automatically Convert into Base Rate Revolving Loans'
(c) Failure to Convert Each notice of Conversion given pursuant to subsection (a)
above shall be irrevocable and binding on the Borrower. In the case of any Borrowing that is to
comprise Eurodollar Rate Revolving [oans upon Conversion, the Borrower agrees to indemniff
each Lender against any loss, cost or expense incurred by such Lender if, as a result of the failure
of the Borrower to satisff any condition to such Conversion (including, without limitation, the
occrurence of any Default), such Conversion does not occur. The Borrower's obligations under
this subsection (c) shall survive the repayment of all other amounts owing to the Lenders and the
Administrative Agent under this Agreement and the termination of the Commitments.
(d) Limitation on Certain Conversions Notwithstanding any other provision of this
Agreement to the contrary, the Borrower may not borrow Revolving Loans at the Eurodollar Rate
oiConvert Revolving Loans resulting in Eurodollar Rate Revolving Loans at any time an Event
of Default has occurred and is continuing.
SECTION 2.14. Opti.onal Prepayments of Loans.
The Borrower may prepay Loans, (i) upon at least two Business Days' notice, in the case
of Eurodollar Rate Revolving Loans, and (ii) upon notice not later than 12:00 noon (New York
City Time) on the date of prepayment, in the case of Base Rate Revolving Loans, to the
Administrative Agent stating the proposed date and aggregate principal amount of the prepayment,
and, if such notice is given, the Borrower shall prepay the outstanding principal amount of the
Loans comprising part of the same Borrowing in whole or ratably in part, without penalty, together
with accruid interist to the date of such prepayment on the principal amount prepaid; provided,
however,that (x) each partial prepayment shall be in an aggregate principal amount of $1,000,000
or an integral multiple of $ 100,000 in excess thereof and (y) in the event of any such prepayment
of a Eurodollar Rate Loan, the Borrower shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 8.04(c).
39
SECTION 2,15. Inueased Costs.
(a) Increased Costs Generally. lf any Change in Law shall:
(i) impose, modify or deem applicable any reserve, assessment, special
deposit, compulsory loan, insurance charge or similar requirement against assets of,
deposits with or for the account of, or credit extended or participated in by, any Lender
(except any reserve requirement reflected in the Eurodollar Rate Reserve Percentage) or
any LC Issuing Bank;
(ii) other than (A) Indemnified Taxes and (B) Excluded Taxes, subject any
Recipient to any Taxes on, or change the basis of taxation of payments to any Recipient in
respect of, its loans, loan principal, leffers of credit, commitments, or other obligations, or
its deposits, reserves, other liabilities or capital attributable thereto; or
(ii0 impose on any Lender or any LC Issuing Bank or the London interbank
market any other condition, cost or expense (other than Taxes) affecting this Agreement or
Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender or such other
Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its
obligation to make any such Loan, or to increase the cost to such Lender, such LC Issuing Bank
or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount
of any sum received or receivable by such Lender, LC Issuing Bank or other Recipient hereunder
(whether of principal, interest or any other amount) then, upon the good faith request of such
Lender, LC Issuing Bank or other Recipient, the Borrower will pay to such Lender, LC Issuing
Bank or other Recipient, as the case may be, such additional amount or amounts as will compensate
such Lender, LC Issuing Bank or other Recipient, as the case may be, for such additionil costs
incurred or reduction suffered.
(b) Capital Requirements. If any Lender or LC Issuing Bank determines that any
Change in Law affecting such Lender or LC Issuing Bank or any lending office of such Lender or
such Lender's or LC Issuing Bank's holding company, if any, regarding capital or liquidity
requirements, has or would have the effect of reducing the rate of return on such Lender's or LC
Issuing Bank's capital or on the capital of such Lender's or LC Issuing Bank's holding company,
if any, as a consequence of this Agreement, the Commitrnents of such Lender or the Loans made
by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by
any LC Issuing Bank, to a level below that which such Lender or LC Issuing Bank or such Lender's
or LC Issuing Bank's holding company could have achieved but for such Change in Law (taking
into consideration such Lender's or LC Issuing Bank's policies and the policies of such Lender'i
or LC Issuing Bank's holding company with respect to capital adequacy and liquidity), then from
time to time the Borrower will pay to such Lender or LC Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or LC Issuing Bank or such
Lender's or LC Issuing Bank's holding company for any such reduction suffered.
40
(c) Certiftcates for Reimbursernent A certificate of a Lender or LC Issuing Bank
setting forth the amount or amounts necessary to compensate such Lender or LC Issuing Bank or
its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and
deliveredio the Borrower, shall be conclusive absent manifest error. The Borrower shall pay such
Lender or LC Issuing Bank, as the case may be, promptly upon demand the amount shown as due
on any such certificate.
(d) Delay in Requests. Failure or delay on the part of any Lender or LC Issuing Bank
to demand compensation pursuant to this Section shall not constitute a waiver of such Lender's or
LC Issuing Bank's right to demand such compensation; provided that the Borrower shall not be
required to compensate a Lender or LC Issuing Bank pursuant to this Section for any increased
"ortr i.r.r11"d oi reductions suffered more than 180 days prior to the date that such Lender or LC
Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such
increaied costs or reductions, and of such Lender's or LC Issuing Bank's intention to claim
compensation therefor (except that, if the Change in Law giving rise to such increased costs or
reduitions is retroactive, then the 180-day period referred to above shall be extended to include
the period ofretroactive effect thereof).
SECTION 2.16. Illegality.
If due to any Change in Law it shall become unlawful or impossible for any Lender (or its
Eurodollar Lending Office) to make, maintain or fund its Eurodollar Rate Revolving Loans, and
such Lender shall so notifu the Administrative Agent, the Administrative Agent shall forthwith
give notice thereof to the other Lenders and the Borrower, whereupon, until such Lender notifies
thr Booo*er and the Administrative Agent that the circumstances giving rise to such suspension
no longer exist, the obligation of such Lender to make Eurodollar Rate Revolving Loans, or to
Convert outstanding Revolving [,oans into Eurodollar Rate Revolving Loans, shall be suspended.
Before giving any notice to the Administrative Agent pursuant to this Section 2.16, such Lender
shall usi reasonable efforts (consistent with its intemal policy and legal and regulatory restrictions
applicable to such Lender) to designate a different Eurodollar Lending Office if such designation
would avoid the need for giving such notice and would not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender. If such notice is given, each Eurodollar Rate
Revolving Loan of such Lender then outstanding shall be converted to a Base Rate Revolving
Loan eithir (i) on the last day of the then cunent Interest Period applicable to such Eurodollar Rate
Revolving Loan if such Lender may lawfully continue to maintain and fund such Revolving Loan
to such day or (ii) immediately if such Lender shall determine that it may not lawfully continue to
maintain and fund such Revolving Loan to such day.
SECTION 2.17. Payments and Computations.
(a) The Borrower shall make each payment to be made by it hereunder not later than
1:00 P.M. (New York City Time) on the day when due in Dollars to the Administrative Agent at
the Agent's Account in same day funds without condition or deduction for any counterclaim,
defense, recoupment or setoff. The Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest or commitment fees ratably
(other than amounts payable pursuant to Section 2.02(c),2.06,2.11(c), 2.13(c),2.15,2.18,2.21 ot
8.04(c) to the Lenders for the account of their respective Applicable Lending Offices, and like
4t
funds relating to the payment of any other amount payable to any Lender to such Lender for the
account of its Applicable Lending Office, in each case to be applied in accordance with the terms
of this Agreement. Upon its acceptance of an Assignment and Assumption and recording of the
information contained therein in the Register pursuant to Section 8.07(c), from and after the
effective date specified in such Assignment and Assumption, the Administrative Agent shall makeall payments hereunder in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Assumption shall make all appropriate
adjushnents in such payments for periods prior to such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the extent payment owed to
such Lender is not made when due hereunder, after any applicable grace period, to charge from
time to time against any or all of the Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the rate referred to in clause (i) of the
definition of the ooBase Rate" contained in Section l.0l shall be made by the Administrative Agent
on the basis of a year of 3 65 or 366 days, as the case may be, and all computations of interest based
on the Eurodollar Rate, the Federal Funds Effective Rate, NYFRB Rate or the rate referred to in
clause (iii) ofthe definition ofthe "Base Rate" and of commitment fees and LC Fees shall be made
by the Administrative Agent on the basis of a year of 360 days, in each case for the actual number
of days (including the first day but excluding the last day) occurring in the period for which such
interest, commitment fees or LC Fees are payable. Each determination by the Administrative
Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(d) Whenever any payment hereunder shall be stated to be due on a day other than a
Business Day, such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment of interest or
commitment fees, as the case may be; provided, however, that, if such ixiension would cause
payment of interest on or principal of Eurodollar Rate Revolving Loans to be made in the next
following calendar month or on a date after the Termination Date, such payment shall be made on
the next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice from the Borrower prior
to the date on which any payment is due to a Lender hereunder that the Borrower will not make
such payment in full, the Administrative Agent may assume that the Borrower has made such
payment in full to the Administrative Agent on such date, and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such due date an amount
equal to the amount then due such Lender. If and to the extent that the Borrower shall not have so
made such payment in full to the Administrative Agent, each Lender shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such Lender until the date
such Lender repays such amount to the Administrative Agent, at the Federal Funds Effective Rate.
(0 Notwithstanding anything to the contrary set forth in subsection (a) above or
Section 2.04(d), the Borrower may pay, or cause to be paid pursuant to the applicable Related
Documents, the Reimbursement Amount with respect to any drawing under a Bond Letter of Credit
directly to the LC Issuing Bank that issued such Bond Letter of Credit. Upon receipt of any such
42
payment, such LC Issuing Bank will promptly (i) (A) apply such payment to that portion of such
Reirnbursement Amount participations in which have not been funded by the Lenders under
Section 2.04(e) and (B) remit the balance of such payment to the Administrative Agent for further
payment to the lrnders that have funded participations in such Reimbursement Amount pursuant
io Section 2.04(e), or (ii) if such Reimbursement Amount has been financed with Borrowings,
remit such payment to the Administrative Agent, which will apply such payment to the prepayment
of Borrowings in a principal amount equal to the principal amount of such Reimbursement Amount
so financed. The Administrative Agent shall select the Borrowings to be prepaid pursuant to clause
(ii) above in a manner that will mitigate, to the extent practical, the Borrower's obligations under
Section 8.0a(c) with respect to such prepayment.
SECTION 2.18. Ta:ces.
(a) Defined Terms. For purposes of this Section 2.18 and for the avoidance of doubt,
the term'ilender'i includes any LC Issuing Bank and the term "Applicable Law" includes FATCA.
(b) Payments Free of Taxes, Any and all payments by or on account of any obligation
of the Borrower under any Loan Document shall be made without deduction or withholding for
any Taxes, except as required by Applicable Law. If any Applicable Law (as determined in the
gobd fuith discretion of an applicable Withholding Agent) requires the deduction or withholding
of *y Tax from any such payment by a Withholding Agent, then the applicable Withholding
Ageni shall be entitled to make such deduction or withholding and shall timely pay the full amount
deducted or withheld to the relevant Govemmental Authority in accordance with Applicable Law
and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower shall be increased
as necessary so that after such deduction or withholding has been made (including such deductions
and wittrholdings applicable to additional sums payable under this Section) the applicable
Recipient receivis an amount equal to the sum it would have received had no such deduction or
wittrholding been made.
(c) Payment of Other Taxes by the Borrower. The Borrower shall timely pay to the
relevant Governmental Authority in accordance with Applicable Law, or at the option of the
Administrative Agent timely reimburse it for the payment of, any Other Taxes.
(d) Indemnification by the Bonower. The Borrower shall indemnify each Recipient,
within 30 days after demand therefor, for the fulI amount of any Indemnifred Taxes (including
Indemnified ta*"r imposed or asserted on or attributable to amounts payable under this Section)
payable or paid by such Recipient or required to be withheld or deducted from a payment to such
Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not
such lndemnified Taxes were correctly or legally imposed or asserted by the relevant
Govemmental Authority. A certificate as to the amount of such payment or liability delivered to
the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative
Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(e) Indemniftcation by the Lenders. Each Lender shall severally indemnify the
Administrative Agent, within 30 days after demand therefor, for any Indemnified Taxes
attributable to such Lender (but only to the extent that the Borrower has not already indemnified
the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the
43
Borrower to do so). Each Lender shall severally indemnify the Administrative Agent and the
Borrower, within 30 days after demand therefor, for (i) any Taxes attributable to such Lender's
failure to comply with the provisions of Section 8.07(d) relating to the maintenance of a Participant
Register and (ii) any Excluded Taxes attributable to such Lender, in each case, that are payable or
paid by the Administrative Agent or the Borrower in connection with any Loan Document, and
any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as
to the amount of such payment or liability delivered to any Lender by the Administrative Agent or
the Borrower shall be conclusive absent manifest error. Each Lender hereby authorizes the
Administrative Agent or the Borrower to set off and apply any and all amounts at any time owing
to such Lender under any Loan Document or otherwise payable by the Administrative Agent or
the Borrower to the Lender from any other source against any amount due to the Administrative
Agent or the Borrower under this subsection (e).
(0 Evidence of Payments. As soon as practicable after any payment of Taxes by the
Borrower to a Governmental Authority pursuant to this Section 2.18, the Borrower shall deliver to
the Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence
of such payment reasonably satisfactory to the Administrative Agent.
(g) Status of Lenders, (i) Any Lender that is entitled to an exemption from or reduction
of withholding Tax with respect to payments made under any Loan Document shall deliver to the
Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower
or the Administrative Agent, such properly completed and executed documentation reasonably
requested by the Borrower or the Administrative Agent as will permit such payments to be made
without withholding or at a reduced rate of withholding. tn additiofl, ffiy Lender, if reasonably
requested by the Borrower or the Administrative Agent, shall deliver such other documentation
prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative
Agent as will enable the Borrower or the Administative Agent to determine whether or not such
Lender is subject to backup withholding or information reporting requirements. Notwithstanding
anything to the contrary in the preceding two sentences, the completion, execution and submission
of such documentation (other than such documentation set forth in Section 2.18(g)(ii)(A), (iiXB)
and (ii)(D) below) shall not be required if in the Lender's reasonable judgment such completion,
execution or submission would subject such Lender to any material unreimbursed cost or expense
or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing,
(A) any Lender that is a U.S. Person shall deliver to the Borrower and the
Administrative Agent on or prior to the date on which such Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), an executed IRS Form W-9 certifying that such Lender is exempt from
U.S. federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver
to the Borrower and the Administrative Agent (in such number of copies as shall be requested by
the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this
44
Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), whichever of the following is applicable:
(i) in the case of a Foreign Lender claiming the benefits of an income
tax treaty to which the United States is a party (x) with respect to payments of
interest under any Loan Document, an executed IRS Form W-8BEN-E or IRS Form
W-8BEN establishing an exemption from, orreduction of, U.S. federal withholding
Tax pursuant to the "interesf' article of such tax treaty and (y) with respect to any
other applicable payments under any Loan Document, an executed IRS Form W-
SBEN-E or IRS Form W-8BEN establishing an exemption from, or reduction of,
U.S. federal withholding Tax pursuant to the "business profits" or o'other income"
article of such tax treatY;
(iD an executed IRS Form W-8ECI;
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under Section 881(c) of the Internal Revenue Code,
(x) a cenificate substantially in the form of Exhibit F-l to the effect that such
Foreign Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the
Internal Revenue Code, a 'ol0 percent shareholder" of the Borrower within the
meaning of Section 881(c)(3XB) of the lnternal Revenue Code, or a "controlled
foreign corporation" described in Section 881(c)(3)(C) of the Internal Revenue
Code (a *U,5. Tox Compliance Certificate") and (y) an executed IRS Form W-
8BEN-E or IRS Form W-8BEN; or
(iv) to the extent a Foreign Lender is not the beneficial owner, an
executed IRS Form W-8IMY, accompanied by an executed IRS Form W-8ECI,
IRS Form W-8BEN-E or IRS Form W-8BEN, a U.S. Tax Compliance Certificate
substantially in the form of Exhibit F-2 or Exhibit F-3, IRS Form W-9, and/or other
certification documents from each beneficial owner, as applicable; provided that if
the Foreign Lender is a partnership and one or more direct or indirect partners of
such Foreign Lender are claiming the portfolio interest exemption, such Foreign
Lender may provide a U.S. Tax Compliance Certificate substantially in the form of
Exhibit F-4 on behalf of each such direct and indirect partner;
(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver
to the Borrower and the Administrative Agent (in such number of copies as shall be requested by
the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), executed originals of any other form prescribed by Applicable Law as a
basis for claiming exemption from or a reduction in withholding Tax, duly completed, together
with such supplementary documentation as may be prescribed by Applicable Law to permit the
Borrower o. th" Administrative Agent to determine the withholding or deduction required to be
made;and
45
(D) if a payment made to a Lender under any Loan Document would be subject
to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with
the applicable reporting requirements of FATCA (including those contained in Section t+1i6; or
1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to the Borrower
and the Administrative Agent at the time or times prescribed by law and at such time or times
reasonably requested by the Borrower or the Administrative Agent such documentation prescribed
by Applicable Law (including as prescribed by Section laTl@)(3XCXi) of the Internal Revenue
Code) and such additional documentation reasonably requested by the Borrower or the
Administrative Agent as may be necessary for the Borrower and the Administrative Agent to
comply with their obligations under FATCA and to determine that such Lender has complied with
such Lender's obligations under FATCA or to determine the amount to deduct and withhold from
such payment. Solely for purposes of this clause (D), "FATCA" shall include any amendments
made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires or
becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly
notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
(h) Treatment of Certain Refunds. If any party determines, in its sole discretion
exercised in good faith, that it has received a refund of any Taxes as to which it has been
indemnified pursuant to this Section 2.18 (including by the payment of additional amounts
pursuant to this Section 2.18), it shall pay to the indemnifying party an amount equal to such refund
(but only to the extent of indemnity payments made under this Section with respect to the Taxes
giving rise to such refund), net of all reasonable out-of-pocket expenses (including Taxes) of such
indemnified party and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund). Such indemnifyrng party, upon the request of such
indemnified PartY, shall repay to such indemnified party the amount paid over pursuant to this
subsection (h) (plus anypenalties, interest or other charges imposed by the relevant Governmental
Authority) in the event that such indemnified party is required to repay such refund to such
Governmental Authority. Not'withstanding anything to the contary in this subsection (h), in no
event will the indemnified party be required to pay any amount to an indemni&ing party pursuant
to this subsection (h) the payment of which would place the indemnified party in a less favorable
net after-Tax position than the indemnified party would have been in if the Tax subject to
indemnification and giving rise to such refund had not been deducted, withheld or otherwise
imposed and the indemnification payments or additional amounts with respect to such Tax had
never been paid. This subsection shall not be construed to require any indemnified party to make
available its Tax returns (or any other information relating to its Taxes that it deems confidential)
to the indemnifuingparty or any other Person.
(i) Survival Each party's obligations under this Section 2.18 shall survive the
resignation or replacement of the Administrative Agent or any assignment of rights by, or the
replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or
discharge of all obligations under any Loan Document.
46
SECTION 2.19. Shating of Payments, Etc.
Ifany Lender shall, by exercising any right ofsetoffor counterclaim or otherwise, obtain
payment in rlspect of any principal of or interest on any of its Loans or other obligations hereunder
iesulting in such Lender riceiving payment of a proportion of the aggregate amount of its Loans
and accrued interest thereon or other such obligations greater than its Commitnent Percentage
thereof as provided herein, then the Lender receiving such greater proportion shall (i) notify the
Administrative Agent of such fact, and (ii) purchase (for cash at face value) participations in the
Loans and such other obligations of the other Lenders, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on their respective
Loans and other amounts owing them;' provided that:
(A) if any such participations are purchased and all or any portion of the
puy-.ri giving rise theretois recovered, such participations shall be rescinded and the
purchase price restored to ttre extent of such recovery, without interest; and
(B) the provisions of this Section shall not be construed to apply to (x) any
payment made by ih" Borro*er pursuant to and in accordance with the express terms of
thi. Agr."*ent (including the application of funds arising from the existence of a
Defauliing Lender and any payment made pursuant to Section 2'02(c), 2.06,2.11(c),
2.13(c), i.15, 2.18, 2.21 or 8.0a(c) or, in respect of Eurodollar Rate Revolving Loans
converted into Base Rate Revolving Loans, pursuant to Section 2.16), or (y) any payment
obtained by a Lender as consideration for the assignment of or sale of a participation in
any of its Loans or participations in LC Outstandings to any assignee or participant, other
than to the Borrow"r o. ury Subsidiary thereof (as to which the provisions of this Section
shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under
Applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may e*ercise against ih" Borro*er rights of setoff and counterclaim with respect to such
pariicipation ur fuUy as if such Lender were a direct creditor of the Borrower in the amount of such
participation.
\ECTION 2.20. Mitigation obligations; Replacement of Lend,ers.
(a) Designation of a Dffirent Lending Offtce. If any Lender requests compensation
under Section 2.15, or if the Borrower is required to pay any Indemnified Taxes or additional
amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.18, then such Lender shall (at the request of the Borrower) use reasonable efforts to
designate a different Applicable Lending Office for funding or booking its Loans hereunder or to
assilr its rights and obiigations hereunder to another of its offices, branches or Affiliates, if, in the
judgment oi such Lender, such designation or assignment (i) would eliminate or reduce amounts-puyuUf. pursuant to Section 2.15 or 2.18, as the case may be, in the future, and (ii) would not
ffiect such Lender to any unreimbursed cost or expense and would not othenvise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or assignment.
47
(b) Replacement of Lenders. If any Lender requests compensation under Section 2.15,
or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section 2.18 and, in
each case, such Lender has declined or is unable to designate a different Applicable Lending Office
in accordance with subsection (a) above, or if any Lender is a Declining Lender, a Defaulting
Lender or a Non-Consenting Lender, then the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained in, and consents
required by, Section 8.07), all of its interests, rights (other than its existing rights to payments
pursuant to Section 2.15 or Section 2.18) and obligations under this Agreement and the related
Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may
be another Lender, if such Lender accepts such assignment); provided that:
(i) the Borrower shall have paid to the Administrative Agent the assignment
fee (if any) specified in Section 8.07(b)(iv);
(ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and any participations in Letters of Credit funded
pursuant to Section 2.04(e), together with all applicable accrued interest thereon, accrued
fees and all other amounts payable to it hereunder and under the other Loan Documents
(including any amounts under Section 8.0a(c)) from the assignee (to the extent of such
outstanding principal amounts and accrued interest and fees) or the Borrower (in the case
of all other amounts);
(iii) in the case of any such assignment resulting from a claim for compensation
under Section2.l5 or payments required to be made pursuant to Section2.l8, such
assignment will result in a reduction in such compensation or payments thereafter;
(iv) such assignment shall not conflict with Applicable Law;
(v) in the case of any assignment resulting from a Lender becoming a Declining
Lender or a Non-Consenting Lender, the applicable assignee shall have consented to the
applicable extension, amendment, waiver or consent; and
(vi) No Default shall have occurred and be continuing.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
SECTION 2.21. Defaulting Lenders.
(a) Defaulting Lender Adjustments. Notwithstanding anything to the contrary
contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as
such Lender is no longer a Defaulting Lender, to the extent permitted by Applicable Law:
48
(i) Waivers and Amendmezts. Such Defaulting Lender's right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be
restriited as set forth in the definition of Required Lenders and in Section 8.01.
(ii) Defaulting Lender Waterfall Any payment of principal, interest, fees or
other amounts reieived by the Adminisfative Agent for the account of such Defaulting
Lender (whether voluntary or mandatory, at maturity, pursuant to Article 6'01 or otherwise)
or received by the Administrative Agent from a Defaulting Lender pursuant to Section 8.05
shall be applied at such time or times as may be determined by the Administrative Agent
as follows: / rst, to the payment of any amounts owing by such Defaulting Lender to the
Administraiive Agent hereunder; second,to the payment on a pro rata basis of any amounts
owlng by such Defaulting Lender to any LC Issuing Bank hereundet; third, to Cash
Collaieralize the LC Issuing Banks' Fronting Exposure with respect to such Defaulting
Lender in accordance with Section 2.22;fourth, as the Borrower may request (so long as
no Default exists), to the funding of any Loan in respect of which such Defaulting Lender
has failed to fund its portion thereof as required by this Agreement, as determined by the
Administrative Agent; fifth, if so determined by the Administrative Agent and the
Borrower, to be held in a deposit account and released pro rata in order (x) to satisfy such
Defaulting Lender's potential future funding obligations with respect to Loans under this
Agreement and (y) to Cash Collateralize the LC Issuing Banks' future Fronting Exposure
wi-th respect to such Defaulting Lender with respect to future Letters of Credit issued under
this Agriement, in accordance with Section 2.22; sixth, to the payment of any amounts
owinglo the Lenders or the LC Issuing Banks as a result of any judgment of a court of
comp-etent jurisdiction obtained by any Lender or the LC Issuing Banks against such
Defaulting Lender as a result of such Defaulting Lender's breach of its obligations under
this Agreem ent; seventh, so long as no Default exists, to the payment of any amounts owing
to the Borrower as a result of any judgment of a court of competent jurisdiction obtained
by the Borrower against such Defaulting Lender as a result of such Defaulting Lender's
bieach of its obligations under this Agreement; and eighth, to such Defaulting Lender or
as otherwise directed by a court of competent jurisdiction; provided that if (x) such
payment is a payment of the principal amount of any Loans or LC Outstandings in respect
if *ni"n ,rr"h Drfu,1lting Lender has not fully funded its appropriate share, and (y) such
Loans were made or the related Letters of Credit were issued at a time when the conditions
set forth in Section 3.02 were satisfied or waived, such payment shall be applied solely to
pay the Loans of, and LC Outstandings owed to, all Non-Defaulting Lenders on a pro rata
ta.ir p.ior to being applied to the payment of any Loans of, or LC Outstandings owed to,
such Defaulting Lender until such time as all Loans and funded and unfunded participations
in LC Outstandings are held by the Lenders pro rata in accordance with the Commitments
without giving effect to Section 2.21(a)(iv). Any payments, prepayments or other amounts
paid or puyuUt. to a Defaulting Lender that are applied (or held) to pay amounts owed by
u O.Autti"g Lender or to post Cash Collateral pursuant to this Section 2.21(a)(ii) shall be
deemed puid to and redirected by such Defaulting Lender, and each Lender irrevocably
consents hereto.
(iii) Certain Fees. (/t) No Defaulting Lender shall be entitled to receive any
commitment fee for any period during which that Lender is a Defaulting Lender (and the
49
Borrower shall not be required to pay any such fee that otherwise would have been required
to have been paid to that Defaulting Lender).
(B) Each Defaulting Lender shall be entitled to receive LC Fees for any
period during which that Lender is a Defaulting Lender only to the extent allocable
to its Commitment Percentage of the LC Outstandings for which it has provided
Cash Collateral pursuant to Section 2.22.
(c) with respect to any LC Fee not required to be paid to any Defaulting
Lender pursuant to clause (B) above, the Borrower shall (x) pay to each Non-
Defaulting Lender that portion of any such LC Fee otherwise payable to such
Defaulting Lender with respect to such Defaulting Lender's participation in LC
Outstandings that has been reallocated to such Non-Defaulting Lender pursuant to
clause (iv) below, (y) pay to each LC Issuing Bank, as applicable, the amount of
any such LC Fee otherwise payable to such Defaulting Lender to the extent
allocable to such LC Issuing Bank's Fronting Exposure to such Defaulting Lender,
and (z) not be required to pay the remaining amount of any such LC Fee.
(iv) Reallocation of Participations to Reduce Fronting Exposure. All or any
part of such Defaulting Lender's participation in LC Outstandings shall be reallocated
among the Non-Defaulting Lenders in accordance with their respective Commitment
Percentages (calculated without regard to such Defaulting Lender's Commitment) but only
to the extent that (x) such reallocation does not cause the aggregate Outstanding Credits of
any Non-Defaulting Lender to exceed such Non-Defaulting Lender's Commitment and (y)
such reallocation does not cause the aggregate Outstanding Credits of all Non-Defaulting
Lenders to exceed the Commitments of all Non-Defaulting Lenders. Subject to Section
8.16, no reallocation hereunder shall constitute a waiver or release of any claim of any
party hereunder against a Defaulting Lender arising from that Lender having become a
Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such
Non-Defaulting Lender' s increased exposure following such reallocation.
(v) Reduction of Available Commitmenls. The Borrower may terminate the
Available Commitment of any Lender that is a Defaulting Lender in accordance with
Section 2.08(b).
(b) Defoulting Lender Cure. lf the Borrower, the Administrative Agent and each LC
Issuing Bank agree in writing that a Lender is no longer a Defaulting Lender, the Administrative
Agent will so notiff the parties hereto, whereupon as of the effective date specified in such notice
and subject to any conditions set forth therein (which may include ,urangements with respect to
any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of
outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may
determine to be necessary to cause the Loans and funded and unfunded participations in LC
Outstandings to be held pro rata by the Lenders in accordance with the Commitments (without
giving effect to Section 2.21(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender;
provided that no adjustments will be made retroactively with respect to fees accrued or payments
made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided,
further, that except to the extent otherwise expressly agreed in writing by the affected parties, no
50
change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any
clainiof any party hereunder arising from that Lender's having been a Defaulting Lender.
(c) New Letters of Credit So long as any Lender is a Defaulting Lender, no LC Issuing
Bank shall be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied
that it will have no Fronting Exposure after giving effect thereto.
(d) Bankruptcy Event or Bail-In Action of a Parent Company. If (i) a Bankruptcy
Event or Bail-In Action with respect to a direct or indirect parent company of any Lender shall
occur following the date hereof and for so long as such event shall continue or (ii) any LC Issuing
Bank has u goo-d faith belief that any Lender has defaulted in fulfilling its obligations under one or
more other agreements in which such Lender commits to extend credit, no LC Issuing Bank shall
be required t6 issue, extend, renew or increase any Letter of Credit, unless such LC Issuing Bank
shall have entered into arrangements with the Borrower or such Lender, satisfactory to such LC
Issuing Bank to defease any risk to it in respect of such Lender hereunder.
SECTION 2.22. Cash Collateral.
At any time that there shall exist a Defaulting Lender, within one Business Day following
the written request of the Administrative Agent or any LC Issuing Bank (with a copy to the
Administrative Agent) the Borrower shall Cash Collateralize the LC Issuing Banks'Fronting
Exposure with respect to such Defaulting Lender (determined after giving effect to Section
Z.it(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less
than the Minimum Collateral Amount.
(i) Grant of Security Interest- The Borrower, and to the extent provided by
any Defar ulting Lender, such Defaulting Lender, hereby glants to the Administrative Agent,
for the benefii of the LC Issuing Banks, and agrees to maintain, a first priority security
interest in all such Cash Collateral as security for the Defaulting Lenders' obligation to
fund participations in respect of LC Outstandings, to be applied pursuant !o paragraph (ii)
below. If at any time the Administrative Agent determines that Cash Collateral is subject
to any right or flui- of ut y Person other than the Administrative Agent and the LC Issuing
Banks as herein provided, or that the total amount of such Cash Collateral is less than the
Minimum Collateral Amount, the Borrower will, promptly upon demand by the
Administrative Agent, pay or provide to the Administrative Agent additional Cash
Collateral in an amount suffrcient to eliminate such deficiency (after giving effect to any
Cash Collateral provided by the Defaulting Lender).
(ii) Application Notwithstanding anything to the contrary contained in this
Agreement, Cashboilateral provided under this Section 2.22 or Section 2.21 inrespect of
Letters of Credit shall be applied to the satisfaction of the Defaulting Lender's obligation
to fund participations in respect of LC Outstandings (including, as to Cash Collateral
provided by a befaulting Lender, any interest accrued on such obligation) for which the
-Cash
Collateral was so provided, prior to any other application of such property as may
otherwise be provided for herein.
5l
(iii) Termination of Requirement" Cash Collateral (or the appropriate portion
thereof) provided to reduce any LC Issuing Bank's Fronting Exposure shall no longer be
required to be held as Cash Collateral pursuant to this Section 2.22 following (A) the
elimination of the applicable Fronting Exposure (including by the termination of
Defaulting Lender status of the applicable Lender), or (B) the determination by the
Administrative Agent and each LC Issuing Bank that there exists excess Cash Collateral;
provided that, subject to Section 2.21, the Person providing Cash Collateral and each LC
Issuing Bank may agree that Cash Collateral shall be held to support future anticipated
Fronting Exposure or other obligations.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01. Conditions Precedent to Effectiveness.
The obligation of each Lender and each LC Issuing Bank to make the initial Extension of
Credit to be made by it hereunder shall become effective on and as of the first date on which the
following conditions precedent have been satisfied:
(a) The Administrative Agent shall have received on or before such date of
effectiveness the following, each dated such day (except as noted otherwise below), in form and
substance reasonably satisfactory to the Administrative Agent and, to the extent requested by the
Administrative Agent, in sufficient copies (except with respect to the promissory notes described
in paragraph (ii) below) for each Lender and each LC Issuing Bank:
(i) A fully executed version of this Agreement and the other Loan Documents;
(ii) Promissory notes payable to each Lender that has requested the same prior
to such date pursuant to Section 2.10(d), duly executed by the Borrower.
(iii) (A) A copy of the articles of incorporation or other organizational
documents of the Borrower and each amendment thereto, certified bythe Secretary of State
of Oregon as being a true and correct copy thereof, and (B) a certificate from the Secretary
of State of Oregon (dated not more than l0 days prior to the date hereof) attesting to the
continued existence and good standing of the Borrower in that State.
(iv) Certified copies of the resolutions of the board of directors of the Borrower
approving this Agreement and the other Loan Documents and of all documents evidencing
other necessary corporate action and Govemmental Approvals required for the execution,
delivery and performance by the Borrower of this Agreement and the other Loan
Documents.
(v) A certificate of the Secretary or Assistant Secretary of the Borrower
certifying (A) the names and true signatures of the officers of the Borrower authorized to
sign this Agreement and the other documents to be delivered by the Borrower hereunder,
and (B) that attached thereto are true and correct copies of the bylaws of the Borrower as
in effect on such date.
52
(vi) A favorable opinion of in-house counsel for the Borrower, in form and
substance reasonably acceptable to the Administrative Agent.
(vii) A favorable opinion of special New York counsel for the Borrower, in form
and substance reasonably acceptable to the Administrative Agent.
(b) On such date, the following statements shall be true and the Administrative Agent
shall have received for the account of each Lender a certificate signed by a duly authorized officer
of the Borrower, dated such date, stating that:
(i) The representations and warranties of the Borrower contained in this
Agreement are true an-d correct on and as of the date of such effectiveness as though made
on and as ofsuch date, and
(ii) No event has occurred and is continuing that constitutes a Default'
(c) The Borrower shall have paid all accrued fees and expenses under the Existing
Credit Agreement payable on the date hereof and all accrued fees and expenses of the
Administrative Agent, the Joint Lead Arrangers and the Lenders payable on the date hereof
(including the accrued fees and expenses of counsel to the Administrative Agent to the extent then
due and payable).
(d) The Adminisffative Agent shall have received all documentation and information
required' ty regulatory authorities under applicable "know your customer" and anti-money
laundering rules and rigulations, including without limitation the Patriot Act, to the extent such
documentation or information is requested by the Administrative Agent on behalf of the Lenders
reasonably in advance ofthe date hereof.
(e) The Administrative Agent shall have received such other approvals or documents
as the Adrninistrative Agent, any Lender or any LC Issuing Bank shall have reasonably requested
through the Administrative Agent reasonably in advance of the date hereof.
'ECTION
3.02. Conditions Precedent to each Extension of credit
The obligation of each Lender and each LC Issuing Bank to make each Extension of Credit
to be made by iihereunder (other than in connection with any Borrowing that would not increase
the aggregate principal amount of l,oans outstanding immediately prior to the making of such
no.ro*r"g stratt Ue suUiect to the following statements being true on the date of such Borrowing
(and eacliof the givingof the applicable Notice of Borrowing or Request for Issuance and the
acceptance by the Borrower of the proceeds of any such Extension of Credit shall constitute a
representation and warranty by the Booo*"r that on the date of such Extension of Credit such
statements are true):
(D The representations and warranties of the Borrower contained in
Section 4.01 (other than the representations and warranties in the first sentence of
Section 4.01@), in Section 4.01(i) and in the first sentence of Section 4.01(n) are true and
correct in all material respects (without duplication of any materiality qualifiers) on and as
of the date of such Extension of Credit, before and after giving effect to such Extension of
53
Credit and to the application of the proceeds therefrom, as though made on and as of such
date, and
(ii) No event has occurred and is continuing, or would result from such
Extension of Credit or from the application of the proceeds therefrom, that constitutes a
Default.
SECTION 3.03. Conditions Precedent to Issuance of Each Bond Letter of Credit
The obligation of each LC Issuing Bank to issue any Bond Letter of Credit in connection
with any series of Bonds shall be subject to the satisfaction of the conditions precedent set forth in
Sections 3.01 and 3.02 andthe further conditions precedent that:
(a) The Administrative Agent shall have received on or before the date of such issuance
the following, in form and substance reasonably satisfactory to the Administrative Agent and the
applicable LC Issuing Bank and, to the extent requested by the Administrative Agent, in sufficient
copies for each Lender:
(i) Counterparts of any Pledge Agreement relating to such Bonds, duly
executed by the Borrower, the Administrative Agent and the applicable Custodian, or other
evidence that the Bonds purchased with the proceeds of such Bond Letter of Credit will be
effectively pledged to or held for the benefit of such LC Issuing Bank and the Lenders, and
that a separate CUSIP number has been assigned to such Bonds.
(ii) Certified copies or originals of the other applicable Related Documents
(which, in the case of the applicable Bonds, may be a specimen of such Bonds).
(iii) Certified copies of the resolutions of the board of directors of the Borrower
approving the Related Documents to which the Borrower is a party in connection with such
Bond Letter of Credit, and of all documents evidencing other necessary corporate action
and Governmental Approvals, if any, with respect to the transactions contemplated by such
Related Documents.
(iv) A certificate of the Secretary or Assistant Secretary of the Borrower
certifying the names and true signatures of the Borrower authorized to sign the Related
Documents to which the Borrower is a party in connection with such Bond Letter of Credit
and the other documents to be delivered by the Borrower hereunder in connection with the
issuance of such Bond Letter of Credit.
(v) A copy of the Official Statement, if any, relating to the Bonds to be
supported by such Bond Leffer of Credit.
(vi) A certificate of an authorized officer of the applicable Custodian certifiiing
the names, true signatures and incumbency of the officers of such Custodian authorized to
sign the applicable Pledge Agreement.
54
(viD A certificate of an authorized officer of the applicable Trustee certifying the
names, true signatures and incumbency of the officers of such Trustee authorized to make
drawings under such Bond Letter of Credit.
(viii) A favorable opinion of counsel to the Borrower with respect to the Related
Documents to which the Borrower is a party.
(ix) A reliance letter from bond counsel relating to the Bonds to be supported
by such'Bond Letter of Credit permitting the Lenders to rely on the approving opinion of
bond counsel with respect to such Bonds.
(x) The Adminisffative Agent shall have received such other approvals or
documents as the Administative Agent, any Lender or any LC Issuing Bank shall have
reasonably requested through the Administrative Agent reasonably in advance of the date
hereof.
(b) On the date of such issuance, the following statements shall be true and correct, and
the Administrative Agent shall have received on or before such date for the account of the
applicable LC Issuing-Bank and each Lender a certificate signed by a duly authorized officer of
th. gooo*er, dated such date, stating that the following representations and warranties are true
and correct in all material respects (without duplication of any materiality qualifiers) on and as of
such date, as though made on and as of such date:
(i) The execution, delivery and performance by the Borrower of each Related
Document to which the Borrower is a party in connection with such Bond Letter of Credit,
and the consummation of the transactions contemplated thereby, are within the Borrower's
corporate powers and have been duly authorized by all necessary corporate and shareholder
action. Each Related Document to which the Borrower is stated to be a party in connection
with such Bond Letter of Credit has been duly executed and delivered by the Borrower.
(iD No authorization or approval or other action by, and no notice to or filing
with, any Governmental Authority or any other third party is required for the due execution,
delivery and performance by the Borrower of any Related Document to which the
Borrower is a party in connection with such Bond Letter of Credit, other than such
authorizatiorrr, upproruls, actions, notices and filings that have been obtained or made (as
applicable) prior to such date.
(iii) The execution, delivery and performance by the Borrower of each Related
Document to which the Borrower is a party in connection with such Bond Letter of Credit
will not (A) violate (x) the articles of incorporation or bylaws (or comparable documents)
of Borrower or any of its Material Subsidiaries or (y) any Applicable Law, (B) be in conflict
with, or result in a breach of or constitute a default under, any contract, agreement,
indenture or instrument to which the Borrower or any of its Material Subsidiaries is a party
or by which any of its or their respective properties is bound, or (C) result in the creation
or imposition of any Lien on the property of Borrower or any of its Material Subsidiaries
other than Permitted Liens and Liens required under this Agreement, except to the extent
55
such conflict, breach or default referred to in the preceding clause (B), individually or in
the aggregate, would not reasonably be expected to have a Material Adverse Effect.
(iv) Each Related Document to which the Borrower is a party in connection with
such Bond Letter of Credit is the legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms.
(v) The representations and warranties of the Borrower in the Related
Documents to which the Borrower is a party in connection with such Bond Letter of Credit
are true and correct in all material respects (without duplication of any materiality
qualifiers).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01, Representations and ll/awanties of the Borrowen
The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly orgatized,,validly existing and in good standing
under the laws of the State of Oregon and is duly qualified to do business and is in good standing
as a foreign corporation under the laws of each state in which the ownership of its properties oi
the conduct of its business makes such qualification necessary, except where the failur; to be so
qualified would not reasonably be expected to have a Material Adverse Effect, and each Material
Subsidiary is duly orgarized, validly existing and in good standing under the laws of thejurisdiction in which it is incorporated or otherwise organized.
(b) The execution, delivery and performance by the Borrower of each Loan Document,
and the consummation of the transactions contemplated hereby and thereby, are within the
Borrower's corporate powers and have been duly authorized by all necessary corporate action.
Each Loan Document has been duly executed and delivered by the Borrower.
(c) No authorization or approval or other action by, and no notice to or filing with, any
Governmental Authority or any other third party is required for the due execution, delivery and
performance by the Borrower of any Loan Document, other than such Govemmental Appiovals
that have been duly obtained and are in full force and effect, which as of the date hereof include:
Decision 88-04-062 of the Public Utilities Commission of the State of Califomia dated, Ap.J.l27,
1988; Order No. 33476 of the Idaho Public Utilities Commission issued March 4,2016, in Case
No. PAC-E-16-03; Order No. 94-1240 and Order No. 98-158 of the Public Utility of Commissionof Oregon issued August 17, 1994 and April 16, 1998, respectively; Order Establishing
Compliance issued April 8, 1998, in Docket UE-980404, by the Washington Utilities and
Transportation Commission; Order Approving Securities Exemption and Accepting the Substance
and Format of the Quarterly Financing Activity Report To Be Filed Thereunder issued November
l,2010,inDocketNo.20000-372-EA-10(RecordNo. 12519),bythePublicserviceCommission
of Wyoming; Report and Order issued May 10, 2007, in Docket No. 07-035-16, by the public
Service Commission of Utah; and Letter Order issued December 4,201.5, in Docket No. ESl6-3-
000, by the FERC.
56
(d) The execution, delivery and performance by Borrower of the Loan Documents will
not (i) violate (A) the articles of incorporation or bylaws (or comparable documents) of Borrower
or any of its Material Subsidiaries or (B) any Applicable Law, (ii) be in conflict with, or result in
a breach of or constitute a default under, any contract, agreement, indenture or instrument to which
the Borrower or any of its Material Subsidiaries is a party or by which any of its or their respective
properties is bound or (iii) result in the creation or imposition of any Lien on the property of
'Bo11o*"r or any of its Material Subsidiaries other than Permitted Liens and Liens required under
this Agreement, except to the extent such conflict, breach or default referred to in the preceding
clauselii;, individually or in the aggregate, would not reasonably be expected to have a Material
Adverse Effect.
(e) Each Loan Document is the legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms, except as limited by bankruptcy
and similar laws affecting the enforcement of creditors' rights generally and by the application of
general equitable principles.
(D The Borrower and each Material Subsidiary are in compliance with all Applicable
taws (including Environmental Laws), except to the extent that failure to comply would not
reasonably be expected to have a Material Adverse Effect.
(g) There is no action, suit, proceeding, claim or dispute pending 9r, t9 lhe Borrower's
knowledge, threatened against or affecting the Borrower or any of its Material Subsidiaries, or any
of its or their respective froperties or assets, before any Governmental Authority that, individually
or in the agg.egute, could reasonably be expected to have a Material Adverse Effect. There is no
injunction, wril, preliminary restraining order or any other order of any nature issued by any
Gtvernmental euthority directing that any material aspect of the transactions expressly provided
for in any of the Loan Documents not be consummated as herein or therein provided.
(h) The consolidated balance sheet of the Borrower and its Consolidated Subsidiaries
as at December 31, 2017, and the related consolidated statements of income, cash flows and
stockholders' equity for the fiscal year ended on such date, certified by Deloitte & Touche LLP,
copies of which have heretofore been fumished to the Administrative Agent and each Lender,
present fairly in all material respects the financial condition of the Borrower and its Consolidated
Subsidiaries as at such date, and the consolidated results of their operations and cash flows for the
fiscal year then ended. All such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP applied consistently throughout the periods
involved (except as may be disclosed therein).
(i) Since Decemb er 3I,201.7,no event has occurred that could reasonably be expected
to have a Material Adverse Effect.
0) The Borrower and each Material Subsidiary have filed or caused to be filed all U.S.
Federal and other material tax returns that are required by Applicable Law to be filed, and have
paid all taxes shown to be due and payable on said returns or on any assessments made against it
i. *y of its property; other than (i) with respect to taxes the amount or validity of which is
currently being cbntested in good faith by appropriate proceedings and with respect to which
,"."*., in conformity with GAAP have been provided on the books of the Borrower or the
57
applicable Material Subsidiary, as the case may be, or (ii) to the extent that the failure to do socould not reasonably be expected to result in a Material Adverse Effect.
(k) No ERISA Event has occurred other than as would not, either individually or in the
aggtegate, be reasonably expected to have a Material Adverse Effect. There are no actions, suits
or claims pending against or involving a Pension Plan (other than routine claims for benefits) or,
to the knowledge of the Borrower or any of its ERISA Affiliates, tlreatened, that would reasonably
be expected to be asserted successfully against any Pension Plan and, if so asserted successfully,
would reasonably be expected either singly or in the aggregate to have a Material Adverse Effeit.
No lien imposed under the Internal Revenue Code or ERISA on the assets of the Borrower or anyof its ERISA Affiliates exists or is likely to arise with respect to any Pension plan. The Borrower
and each of its Subsidiaries have complied with foreign law applicable to its Foreign plans, except
to the extent that failure to comply would not reasonably be expected to have a Material Adverse
Effect.
0) The Borrower is not engaged in the business of extending credit for the purpose ofbuying or carrying Margin Stock, and no proceeds of any Loan will be used to extend credit to
others for the purpose of buying or carrying any Margin Stock. Following the application of the
proceeds of any Extension of Credit, not more than21o/o of the value of the assets of the Borrower
and the Material Subsidiaries that are subject to the restrictions of Section 5.02(a)or (c) constituteMargin Stock.
(m) Neither the Borrower nor any Subsidiary is an 'oinvestment company" or a company
"controlled" by an o'investment company," as such terms are defined in the Investment Company
Act of 1940, as amended.
(n) There are no claims, liabilities, investigations, litigation, notices of violation orliability, administrative proceedings, judgments or orders, whether asserted, pending or threatened,
relating to any liability under or compliance with any applicable Environmental Law, against the
Borrower or any Material Subsidiary or relating to any real property currently or formerly owned,
leased or operated by the Borrower or any Material Subsidiary, that would reasonably be Lxpected
to have a Material Adverse Effect. No Hazardous Materials have been or are present o. *" brirg
spilled, discharged or released on, in, under or from property (real, personal or mixed) curren !or formerly owned, leased or operated by the Borrower or any Material Subsidiary in any quantity
or manner violating, or resulting in liability under, any applicable Environmental Law, whiciviolation or liability would reasonably be expected to have a Material Adverse Effect.
(o) No written statement or information furnished by or on behalf of the Borrower to
the Administrative Agent, any Lender or any LC Issuing Bank in connection with the syndication
or negotiation of this Agreement or delivered pursuant hereto, in each case as of the date such
statement or information is made or delivered, as applicable, contained or containS, ffiy material
misstatement of fact or intentionally omitted or omits to state any material fact necessary to make
the statements therein, in the light of the circumstances under which they were, are, or will be
made, not misleading.
(p) Each Material Subsidiary as of the date hereof is set forth on Schedule III.
58
(q) The Borrower has implemented and maintains in effect policies and procedures
designedlo promote compliance by the Borrower, its Subsidiaries and their respective directors,
offiJers andimploy."r *ith Anti-Comrption Laws and applicable Sanctions, and the Borrower,
its Subsidiari"r-*d, to the knowledge of tn. Borrower, their respective officers, directors and
employees and their respective agents that will act in any capacity in connection with or benefit
from the credit facility established hereby, are in compliance with Anti-Comrption Laws and
applicable Sanctions in all material respects. None of the Borrower or any Subsidiary is a
Sanctioned person. No Borrowing or Letter of Credit, use of proceeds or other transaction
contemplated by this Agreement wili violate any Anti-Comrption Law or applicable Sanctions.
ARTICLE V
COVENAI\TS OF THE BORROWER
SECTION 5.0 1. Alftrmative Covenants.
So long as any Loan or any other amount payable hereunder shall remain unpaid, any Letter
of Credit shall remain outstanding or any Lender shall have any Commitment hereundeq the
Borrower will:
(a) payment of Taxes, Etc. Pay and discharge, and cause each Material Subsidiary to
puy *d discharge, befoie the same shall become delinquent, (i) all taxes, assessments and
governmental charges or levies imposed upon it or its property, and (ii) all lawful claims that, if
inpaid, would by Applicable Law beco-i u Lien upon its property, in each case, except to the
extent that the failureio pay and discharge such amounts, either singly or in the aggregate, would
not reasonably be expectidto have a Material Adverse Effect; provided, however,that neither the
Borrowepoi *y Material Subsidiary shall be required to pay or discharge any such tax,
assessment, chargb or claim that is being contested in good faith and by proper proceedings and as
to which adequate reserves are being maintained in accordance with GAAP.
(b) Preservation of Existence, Etc. Preserve and maintain, and cause each Material
Subsidiary to preserve and maintain, its corporate, partnership or limited liability company (as the
"ur" -uy be) existence and all rights (charter and statutory) and franchises, except to the extent
the failure to maintain such righis and franchises would not reasonably be expected to have a
Material Adverse Effect; provided, however,that the Borrower and any Material Subsidiary may
consummate any merger or consolidation permitted under Section 5'02(b).
(c) Compliance with Laws, Etc. Comply, and cause each Material Subsidiary to
comply'with Applicable Law (with such compliance to include, without limitation, compliance
witlr-dnvironmintal Laws, the Patriot Act, Anti-Comrption Laws and Sanctions), except to the
extent the failure to do so would not reasonably be expected to have a Material Adverse Effect.
(d) Inspection Rights. At any reasonable time and from time to time, permit the
Administrative Agent, any LC Issuing Bank or any Lender or any designated agents or
representatives theieof, at all reasonable times and to the extent permitted by Applicable Law, to
examine and make copies of and abstracts from the records and books of account of, and visit the
properties of, the Borrower and any Material Subsidiary and to discuss the affairs, finances and
accounts of the Borrower and any Material Subsidiary with any of their officers or directors and
59
with their independent certified public accountants (at which discussion, if the Borrower or such
Material Subsidiary so requests, a representative of the Borrower or such Material Subsidiary shall
be permitted to be present, and if such accountants should require that a representative of the
Borrower be present, the Borrower agrees to provide a representative to affend such discussion);
provided that (i) such designated agents or representatives shall agree to any reasonable
confidentiality obligations proposed by the Borrower and shall follow the guidelines and
procedures generally imposed upon like visitors to the Borrower's facilities, and (ii) unless an
Event of Default shall have occurred and be continuing, such visits and inspections shall occur not
more than once in any fiscal quarter.
(e) Keeping of Books . Keep, and cause each Material Subsidiary to keep, proper books
of record and account, in which full and correct entries shall be made of all financial transactions
and the assets and business of the Borrower and each such Material Subsidiary in accordance with
GAAP.
(0 Maintenance of Properties, Etc. Maintain and preserve, and cause each Material
Subsidiary to maintain and preserve, all of its properties that are material to the conduct of its
business in good working order and condition, ordinary wear and tear excepted.
(g) Maintenance of Insurance. Maintain, and cause each Material Subsidiary to
maintain, insurance with responsible and reputable insurance companies or associations in such
amounts and covering such risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which Borrower or any of its Material
Subsidiaries operates to the extent available on commercially reasonable terms (the "Industryt
Standart'); provided,ltowever, that the Borrower and each Material Subsidiary may self-insure
to the same extent as other companies engaged in similar businesses and owning similar properties
and to the extent consistent with prudent business practice; and provided, further, that if the
Industry Standard is such that the insurance coverage then being maintained by Borrower and its
Material Subsidiaries is below the Industry Standard, Borrower shall only be required to use its
reasonable best efforts to obtain the necessary insurance coverage such that its and its Material
Subsidiaries' insurance coverage equals or is greater than the Industry Standard.
(h) Reporting Requirements. Furnish to the Lenders:
(i) within 60 days after the end of each of the first three quarters of each fiscal
year of the Borrower, a copy of the consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such quarter and consolidated statements of
income and cash flows of the Borrower and its Consolidated Subsidiaries for the period
commencing at the end of the previous fiscal year and ending with the end of such quarter,
duly certified (subject to year-end audit adjustments) by the chief financial officer, chief
accounting officer, treasurer or assistant treasurer of the Borrower as having been prepared
in accordance with generally accepted accounting principles and a certificate of the chief
financial officer, chief accounting officer, treasurer or assistant treasurer of the Borrower
as to compliance with the terms of this Agreement and setting forth in reasonable detail the
calculations necessary to demonstrate compliance with Section 5.03, provided that in the
event of any change in GAAP used in the preparation of such financial statements, the
Borrower shall also provide, if necessary for the determination of compliance with Section
60
5.03, a statement of reconciliation conforming such financial statements to GAAP in effect
on the date hereof;
(ii) within 120 days after the end of each fiscal year of the Borrower, a copy of
the annual audit report for such year for the Borrower and its Consolidated Subsidiaries,
containing a consolidated balance sheet of the Borrower and its Consolidated Subsidiaries
as of the end of such fiscal year and consolidated statements of income and cash flows of
the Borrower and its Consolidated Subsidiaries for such fiscal year, in each case
accompanied by an opinion by Deloitte & Touche LLP or other independent public
accogntants of nationally recognized standing, and a certificate of the chief financial
officer, chief accounting officer, treasurer or assistant keasurer of the Borrower as to
compliance with the terms of this Agreement and setting forth in reasonable detail the
calculations necessary to demonstrate compliance with Section 5.03, provided that in the
event of any change in GAAP used in the preparation of such financial statements, the
Borrower shall also provide, if necessary for the determination of compliance with Section
5.03, a statement of ieconciliation conforming such financial statements to GAAP in effect
on the date hereof;
(iii) within five days after the chief financial officer or treasurer of the Borrower
obtains knowledge of the occurrence of any Default, a statement of the chief financial
officer or treasurer of the Borrower setting forth details of such Default and the action that
the Borrower has taken and proposes to take with respect thereto;
(iv) within ten Business Days after the Borrower or any of its ERISA Affiliates
knows or has reason to know that (A) the Borrower or any of its ERISA Affiliates has
failed to comply with ERISA or the related provisions of the Internal Revenue Code with
respect to anyPension Plan, and such noncompliance will, or could reasonablybe expected
to, result in material liability to the Borrower or its Subsidiaries, and/or (B) any ERISA
Event (other than an ERISA Event as defined in clause (vi) of the definition of "ERISA
Event") has occurred, a certificate of the chief financial officer of the Borrower describing
such ERISA Event and the action, if any, proposed to be taken with respect to such ERISA
Event and a copy of any notice filed with the PBGC or the IRS pertaining to such ERISA
Event and all notices received by the Borrower or such ERISA Affiliate from the PBGC or
any other govemmental agency with respect thereto;
(v) promptly after the commencement thereof, notice of all actions and
proceedings before, and orders by, any Governmental Authority affecting the Borrower or
any Material Subsidiary of the type described in Section 4.01(g);
(vi) together with the financial statements delivered in paragraphs (i) and (ii) of
this Section 5.014h), if Schedule III shall no longer set forth a complete and conect list of
all Material Subsidiaries as of the last date of the period for which such financial statements
were prepared, an updated Schedule III setting forth all Material Subsidiaries as of the last
date of such period for which such financial statements have been prepared;
(vii) promptly upon the occurrence of a Reportable Compliance Event, notice of
such occurrence; and
6t
(viii) such other information respecting the Borrower or any of its Subsidiaries as
any Lender through the Administrative Agent may from time to time reasonably request.
If the financial statements required to be delivered pursuant to Section 5.01(h)(i) or 5.01(h)(ii) are
included in any Form 10-K or 10-Q filed by the Borrower, the Borrower's obligation to deliver
such documents or information to the Administrative Agent shall be deemed to be satisfied upon
(x) delivery of a copy of the relevant form to the Administrative Agent within the time period
required by such Section or (y) the relevant form being available on EDGAR and the delivery of
a notice to the Administrative Agent (which notice may be delivered by electronic mail and/or
included in the applicable compliance certificate delivered pursuant to Section 5.01(h)(i) or
5.01(h)(ii)) that such form is so available, in each case within the time period required by such
Section.
(i) Use of Proceeds. Use the proceeds of the Borrowings and the Letters of Credit for
working capital and other general corporate purposes.
CI) Control of Purchased Bonds. So long as any Bond Letter of Credit shall remain
outstanding, cause each Bond purchased with the proceeds of such Bond Letter of Credit to be
subject to the Lien of an applicable Pledge Agreement or otherwise registered in the name of the
applicable LC Issuing Bank, the Administrative Agent or any nominee of such LC Issuing Bank
or of the Administrative Agent pending the remarketing of such Bonds pursuant to the applicable
Remarketing Agreement and the other applicable Related Documents.
SECTION 5.02. Negative Covenants.
So long as any Loan or any other amount payable hereunder shall remain unpaid, any Leffer
of Credit shall remain outstanding or any Lender shall have any Commitrnent hereunder, the
Borrower agrees that it will not:
(a) Liens, Etc. Create or suffer to exist, or cause or permit any Material Subsidiary to
create or suffer to exist, any Lien on or with respect to any of its properties, including, without
limitation, equity interests held by such Person in any Subsidiary of such Person, whether now
owned or hereafter acquired, other than (i) Permitted Liens, (ii) Liens created under Section2.22
or 6.02, (iii) Liens created by or pursuant to (x) the Mortgage and Deed of Trust, dated as of
January 9, 1989, as amended, modified or supplemented, of PacifiCorp, entered into with The
Bank of New York Mellon Trust Company, N.A. (as successor trustee to JPMorgan Chase Bank,
N.A.) or (y) any other first mortgage indenture or similar agreement or instrument pursuant to
which the Borrower or any of its Material Subsidiaries may issue bonds, notes or similar
instruments secured by a lien on all or a substantial portion of its fixed assets, so long as under the
terms of such other indenture or similar agreement or instrument no "cross-default" or similar
"event of default" (howsoever designated) in respect of any bonds, notes or other instruments
issued thereunder will be triggered by reference to a Default, and (iv) Liens, in addition to the
foregoing, securing obligations not greater than the greater of (A) 7.5Yo of consolidated
shareholders' equity of all classes (whether cofirmon, preferred, mandatorily convertible preferred
or preference) of the Borrower and (B) $100,000,000.
62
(b) Mergers, Etc. Merge or consolidate with or into any Person, unless (i) the
successor.entity (if other than the Borrower) (A) assumes, in form reasonably satisfactory to the
Administrative Agent, all of the obligations of the Borrower under this Agreement, (B) is a
corporation or limited liability company formed under the laws of the United States of America,
one of the states thereof or the District of Columbia, (C) is in pro forma compliance with the
covenant in Section 5.03 both before and after giving effect to such proposed transaction
(determined as if such proposed transaction had occurred on the last day of the most recent fiscal
quarter period preceding the date of such proposed transaction for which financial statements have
been deiiveredpursuant to Section 5.01(h) and (D) has long-term senior unsecured debt ratings
issued (and confirmed after giving effect to such merger) by S&P or Moody's of at least BBB- and
Baa3, respectively (or if noiuch ratings have been issued, commercial paper ratings issued (and
confirmed after giving effect to such merger) by S&P and Moody's of at least A-3 and P-3,
respectively), *O liif no Default shall have occurred and be continuing at the time of such
proposed tiansaction or would result therefrom, xrdprovided, in each case of clause (i) where the
.rr.."rro. entity is other than the Borrower, that the Administrative Agent shall have received, and
be reasonably satisfied with, all documentation and information required by regulatory authorities
under applicable "know your customer" and anti-money laundering rules and regulations,
including-without limitation the Patriot Act, to the extent such documentation or information is
requested by the Administrative Agent on behalf of the Lenders prior to the date of such proposed
transaction.
(c) Sales, Etc of Assets. Sell, lease, transfer or otherwise dispose of all or substantially
all of its assets to any Person, or grant any option or other right to purchase, lease or otherwise
acquire such assets, except that the Borrower may sell, lease, transfer or otherwise dispose of all
or substantially all of its assets to any Person so long as the requirements set forth in Section
5.02(b) are satisfied as if such disposition were a merger or consolidation in which the Borrower
is not the surviving entity.
(d) IJse of Proceeds. Use the proceeds of any Extension of Credit to buy or carry
Margin Stock in violation of the Margin Regulations.
(e) Optional Redemption of Bonds. So long as any Bond Letter of Credit shall remain
outstanding, "u*. or permit delivery of a notice of an optional redemption or purchase of the
applicable-Bonds or oi a change in the interest modes (other than to or from a mode in which
interest is payable at arate determined daily or weekly) on such Bonds resulting in a mandatory
redemption or purchase of such Bonds under the applicable Indenture, unless (i) the Borrower has
deposiled with the Administrative Agent, the applicable LC Issuing Bank or the applicable Trustee
arramount equal to the principal of, premium, if any, and interest on such Bonds on the date of
such redemption or purchase, or (ii) any notice of such redemption or purchase or change in the
applicable interest mode is conditional upon receipt by the applicable Trustee or paying agent on
oi-prior to the date fixed for the applicable redemption or purchase of funds (other than funds
drawn under such Bond Letter of Credit) sufficient to pay the principal of, premium, if any, and
interest on such Bonds on the date of such redemption or purchase.
(0 Amendments to Indenture. So long as any Bond Letter of Credit shall remain
outstanding, amend, modify, terminate or grant, or permit the amendment, modification,
termination or grant of, any waiver under (or consent to, or permit or suffer to occur any action or
63
omission which results in, or is equivalent to, an amendment, modification, or grant of a waiver
under) any provision of the applicable lndenture that would (i) directly affect the rights or
obligations of the applicable LC Issuing Bank under the applicable Related Documents without
the prior written consent of such LC Issuing Bank or (ii) have an adverse effect on the rights or
obligations of the Lenders hereunder without the prior written consent of the Required Lenders.
(g) Official Statemenl So long as any Bond Letter of Credit shall remain outstanding,
refer to the applicable LC Issuing Bank in the Official Statement with respect to the applicable
Bonds or make any changes in reference to such LC Issuing Bank in any revision, amendment or
supplement without the prior consent of such LC Issuing Bank, or revise, amend or supplement
such Official Statement without providing a copy of such revision, amendment or supplement, as
the case may be, to such LC Issuing Bank.
(h) Use of Proceeds of Bond Letter of Credit So long as any Bond Letter of Credit
shall remain outstanding, permit any proceeds of such Bond Letter of Credit to be used for any
pupose other than the payment of the principal of, interest on, redemption price of and purchase
price of the applicable Bonds.
(D Compliance with Anti-Corruption Laws and Sanctions. The Borrower will not,
directly or, to the knowledge of the Borrower, indirectly, use the proceeds of any Borrowing or
any Letter of Credit, or lend, contribute or otherwise make available such proceeds to any
Subsidiary, joint venture partner or other Person (i) in furtherance of an offer, payment, promise
to pay, or authorization of the payment or giving of money, or anything else of value, to any Person
in violation of any Anti-Comrption Laws, (ii) for the purpose of funding, financing or facilitating
any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned
Country, or (iii) in any manner that would result in the violation of any Sanctions by the Borrower
or any of its Subsidiaries or, to the knowledge of the Borrower, any other party (including each
Credit Purty) to this Agreement or the other Loan Documents.
SECTION 5.03. Financial Covenanl
So long as any Loan shall remain unpaid, any Letter of Credit shall remain outstanding or
any Lender shall have any Commitment hereunder, the Borrower will maintain a ratio of
Consolidated Debt to Consolidated Capital of not greater than 0.65 to 1.00 as of the last day of
each fiscal quarter.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Defoull
If any of the following events ("Events of Defoulf') shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan when the same becomes
due and payable, or shall fail to pay any interest on any Loan or make any other payment of fees
or other amounts payable under this Agreement within five days after the same becomes due and
64
payable, or shall fail to provide Cash Collateral in accordance with Sectiot2.2l(a)(v),2.22 or 6'02
within five days after the same is required to be provided; or
(b) Any representation or warranty made by the Borrower herein or by the Borrower
(or any of its officers) in connection with this Agreement shall prove to have been incorrect in any
material respect when made; or
(c) (i) The Borrower shall fail to perform or observe any term, covenant or agreement
contained in Section 5.01(b), 5.01O, 5.02 or 5.03, or (ii) the Borrower shall fail to perform or
observe any other term, covenant or agreement contained in this Agreement or any other Loan
Document if such failure shall remain unremedied for 30 days after written notice thereof shall
have been given to the Borrower by the Administrative Agent or any Lender; or
(d) The Borrower or any Material Subsidiary shall fail to pay any principal of or
premium or interest on any Debt (other than Debt under this Agreement) that is outstanding in a
principal amount in excess of $100,000,000 in the aggregate when the same becomes due and
payable (whether by scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt; or any other event shall occur or condition shall
exist under any agreement or instrument relating to any such Debt and shall continue after the
applicable grace period, if any, specified in such agreement or instrument, if the effect of such
event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or
any such Debt shall be declared to be due and payable, or required to be prepaid or redeemed (other
than by a regularly scheduled required prepayment or redemption), prior to the stated maturity
thereof; or
(e) Any judgment or order for the payment of money in excess of $100,000,000 to the
extent not paid or insured shall be rendered against the Borrower or any Material Subsidiary and
either (i) enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be
in effect; or
(0 The Borrower or any Material Subsidiary shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding shall be instituted by or against
the Borrower or any Material Subsidiary seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part of its property and, in
the case of any such proceeding instituted against it (but not instituted by it), either such proceeding
shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial
part of its property) shall occur; or the Borrower or any Material Subsidiary shall take any
corporate action to authorize any of the actions set forth above in this subsection (0; or
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G) An ERISA Event shall have occurred that, when taken together with all other
ERISA Events that have occurred, has resulted in, or is reasonably likely to result in, a Material
Adverse Effect; or
(h) (i) Berkshire Hathaway shall fail to own, directly or indirectly, at least 50% of the
issued and outstanding shares of common stock of the Borrower, calculated on a fully diluted basis
or (ii) Berkshire Hathaway Energy Company shall fail to own, directly or indirectly, at least 80%
of the issued and outstanding shares of common stock of the Borrower, calculated on a fully diluted
basis (each, a "Change of Controt'); provided that, in each case of the foregoing clauses (i) and(ii), such failure shall not constitute an Event of Default unless and until a Rating Decline has
occurred;
then, and in any such event, the Administrative Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the obligation of each Lender
and each LC Issuing Bank to make Extensions of Credit to be terminated, whereupon the same
shall forthwith terminate; (ii) shall at the request, or may with the consent, of the Required Lenders,
by notice to the Bor:rower, declare the outstanding Borrowings, all interest thereon and all other
amounts payable under this Agreement to be forthwith due and payable, whereupon the
outstanding Borrowings, all such interest and all such amounts shall become and be forthwith due
and payable by the Borrower, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by the Borrower; provided, however, that in the event of
an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy
Code of the United States of America, (A) the obligation of each Lender and each LC Issuing Bankto make Extensions of Credit shall automatically be terminated and (B) the outstanding
Borrowings, all such interest and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower; (iii) shall at the request, or may with the consent, of the
Required Lenders by notice to the Borrower, give notice of the occurrence of an Event of Default
to the Trustee for each series of Bonds supported by a Bond Letter of Credit issued for the account
of the Borrower and instruct such Trustee either to accelerate such Bonds, thereby causing such
Bond Letter of Credit to expire thereafter, per the terms of such Bond Letter of Credit, or to effect
a mandatory tender of such Bonds; and (iv) shall at the request, or may with the consent, of the
Required Lenders by notice to the Borrower, pursue any rights and remedies on behalf of the
Lenders and the applicable LC Issuing Bank that the Administrative Agent may have under the
Related Documents executed and delivered in connection with any Bond Leffer of Credit.
In addition, if an "Event of Default" (or any other similar term) under and as defined in
any Indenture executed and delivered in connection with any Bond Letter of Credit (a "Bond Event
of Defoult") shall have occurred and be continuing, such circumstance shall constitute an Event
of Default hereunder solely for the purpose of permitting the exercise of the remedies described in
clauses (iii) and (iv) of the immediately preceding paragraph with respect to the Bonds for which
such Bond Event of Default exists and the related Bond Letter of Credit and not for any other
pu{pose under this Agreement. For the avoidance of doubt, a Bond Event of Default shall not give
the Administrative Agent the right to exercise any other remedy described in the immediately
preceding paragraph, unless such Bond Event of Default, or the facts and circumstances underlying
such Bond Event of Default, gives rise to another Event of Default otherwise described in Section
6.01.
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SECTION 6.02. Actions in Respect of the Letters of Credit upon Defoult
If any Event of Default described in Section 6.01(0 with respect to the Borrower shall have
occurred and be continuing or the Borrowings shall have otherwise been accelerated or the
Commitments terminated pursuant to Section 6.01, then the Administative Agent may, or shall at
the request of the Required Lenders, make demand upon the Borrower to, and forthwith upon such
demand (or, in the case of an Event of Default under Section 6.01(0 with respect to the Borrower,
automatically without demand) the Borrower will, deposit in an account designated in such
demand $h; *LC Collateral Accounf') with the Administrative Agent, in the name of the
Administiative Agent and for the benefit of the Lenders and LC Issuing Banks, in same day funds,
an amount equal to 103% of the aggregateundrawn stated amounts of all Leffers of Credit that are
outstanding on such date. If at any time the Administrative Agent determines that any funds held
in the LC Collateral Account are subject to any right or claim of any Person other than the
Administrative Agent, the Lenders and the LC Issuing Banks or that the total amount of such funds
is less than 103% of the aggregate undrawn stated amounts of all Letters of Credit that are
outstanding on such date, the Borrower will, forthwith upon demand by the Administrative Agent,
pay to the Administrative Agent, as additional funds to be deposited and held in the LC Collateral
Account, an amount equal to the excess of (i) 103% of such aggregate undrawn stated amounts of
all Letters of Credit that are outstanding on such date over (ii) the total amount of funds, if any,
then held in the LC Collateral Account that the Administrative Agent determines to be free and
clear of any such right and claim. Upon the drawing of any Letter of Credit for which funds are
on depositin the LC Collateral Account, such funds shall be applied to reimburse the relevant LC
Issuing Bank or Lender holding a participation in the reimbursement obligation of the Borrower
to such LC Issuing Bank to the extent permitted by Applicable Law.
ARTICLE VII
THE ADIVilNISTRATIVE AGENT
SECTION 7.01. Appointment and Authority.
Each Lender and each LC Issuing Bank hereby irrevocably appoints JPMCB to act on its
behalf as the Administrative Agent hereunder, under the other Loan Documents and the Related
Documents and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof,
together with such actions and powers as are reasonably incidental thereto. The provisions of this
arti.t. are solely for the benefit of the Administrative Agent, the Lenders and the LC Issuing
Banks, and the Borrower shall not have rights as a third-party beneficiary of any of such provisions.
It is understood and agreed that the use of the term "agent" herein, in any other Loan Document
or any Related Document (or any other similar term) with reference to the Administrative Agent
is not intended to connote any fiduciary or other implied (or express) obligations arising under
agency doctrine of any Applicable Law. Instead such term is used as a matter of market custom,
*d ir irrt"t ded to create or reflect only an administrative relationship between contracting parties.
SECTION 7.02. Rights as a Lender.
The Person serving as the Administrative Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same as though it
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were not the Administrative Agent, and the term ool-ender" or "Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person serving as the
Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may
accept deposits from, lend money to, own securities of, act as the financial advisor or in any other
advisory capacity for, and generally engage in any kind of business with, the Borrower or any
Subsidiary or other Affiliate thereof as if such Person were not the Administative Agent hereunder
and without any duty to account therefor to the Lenders.
SECTION 7.03. Exculpatory Provisions.
(a) The Administrative Agent shall not have any duties or obligations except those
expressly set forth herein, in the other Loan Documents and in the Related Documents, and its
duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing,
the Administrative Agent:
(i) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;
(iD shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated
hereby, by the other Loan Documents or by the Related Documents that the Administrative
Agent is required to exercise as directed in writing by the Required Lenders (or such other
number or percentage of the Lenders as shall be expressly provided for herein, in the other
Loan Documents or in the Related Documents); provided that the Administrative Agent
shall not be required to take any action that, in its opinion or the opinion of its counsel,
may expose the Administrative Agent to liability or that is contary to any Loan Document,
any Related Document or Applicable Law, including for the avoidance of doubt any action
that may be in violation of the automatic stay under any Debtor Relief Law or that may
effect a forfeiture, modification or termination of property of a Defaulting Lender in
violation of any Debtor Relief Law; and
(iii) shall not, except as expressly set forth herein, in the other Loan Documents
or in the Related Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of its Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent or any of
its Affiliates in any capacity.
(b) The Administrative Agent shall not be liable for any action taken or not taken by it
(i) with the consent or at the request of the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith
shall be necessary, under the circumstances as provided in Sections 6.0l,6.02 and 8.01), or (ii) in
the absence of its own gross negligence or willful misconduct as determined by a court of
competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be
deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent in writing by the Borrower, a Lender or an LC Issuing Bank.
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(c) The Administative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in connection with this
Agreernent, &try other Loan Document or any Related Document, (ii) the contents of any
certificate, report or other document delivered hereunder or thereunder or in connection herewith
or therewith, (iii) the performance or observance of any of the covenants, agreements or other
terms or conditions set forth herein or therein or the occlrlrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan Document, any
Related Document or any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article III or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.
SECTION 7.04. Reliance by Administrative Agenl
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability
for relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Administrative Agent also may rely upon any statement made to it
oially or by telephone and believed by it to have been made by the proper Person, and shall not
incur any liability for relying thereon. In determining compliance with any condition hereunder
to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that
by its terms must be fulfilled to the satisfaction of any Lender or an LC Issuing Bank, the
Administrative Agent may presume that such condition is satisfactory to such Lender or such LC
Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such
Lendei or such LC Issuing Bank prior to the making of such Loan or the issuance of such Letter
of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such counsel, accountants or
experts.
SECTION 7.05. Resignation of Administrative Agent
(a) The Administrative Agent may at any time give notice of its resignation to the
Lenders, the LC Issuing Banks and the Borrower. Upon receipt of any such notice of resignation,
the Required Lenders shall have the right, in consultation with the Borrower, to appoint a
,..,r""rror, which shall be (i) a commercial bank with an office in the United States having a
combined capital and surplus of at least $500,000,000, or an Affrliate of any such bank with an
office in the-UoiteA States and (ii) subject to the approval of the Borrower so long as no Default
shall have occurred and be continuing (such approval not to be unreasonably withheld or delayed).
Ifno such successor shall have been so appointed by the Required Lenders and shall have accepted
such appointrnent within 30 days after the retiring Administrative Agent gives notice of its
resignation (or such earlier day as shall be agreed by the Required Lenders) (the "Resignation
n6"Atn" Date"), then the retiring Administrative Agent may (but shall not be obligated to), on
behalf of the Lenders and the LC Issuing Banks, appoint a successor Administrative Agent meeting
the qualifications set forth above. Whether or not a successor has been appointed, such resignation
shali become effective in accordance with such notice on the Resignation Effective Date.
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(b) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to
clause (d) of the definition thereof the Required Lenders may, to the extent permitted by
Applicable Law, by notice in writing to the Borrower and such Person remove such Person as
Administrative Agent and, in consultation with the Borrower, appoint a successor, which shall be(i) a commercial bank with an office in the United States having a combined capital and surplus
of at least $500,000,000, or an Affiliate of any such bank with an office in the United States and(ii) subject to the approval of the Borrower so long as no Default shall have occurred and be
continuing (such approval not to be unreasonably withheld or delayed). If no such successor shall
have been so appointed by the Required Lenders and shall have accepted such appointnent within
30 days (or such earlier day as shall be agreed by the Required Lenders) (the "Removal Effective
Date"), then such removal shall nonetheless become effective in accordance with such notice on
the Removal Effective Date.
(c) With effect from the Resignation Effective Date or the Removal Effective Date (as
applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties
and obligations hereunder and under the other Loan Documents and (2) except for any indemnity
payments owed to the retiring or removed Administrative Agent, all payments, communications
and determinations provided to be made by, to or through the Administrative Agent shall instead
be made by or to each Lender and each LC Issuing Bank directly, until such time, if any, as the
Required Lenders appoint a successor Administrative Agent as provided for above. Upon the
acceptance of a successor's appointment as Administrative Agent hereunder, such successor shall
succeed to and become vested with all of the rights, powers, privileges and duties of the retiring
or removed Administrative Agent (other than any rights to indemnity payments owed to the
retiring or removed Adminishative Agent), and the retiring or removed Administrative Agent shall
be discharged from all of its duties and obligations hereunder, under the other Loan Documents or
under the Related Documents. The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the retiring or removed Administrative Agent's resignation
or removal hereunder, under the other Loan Documents and under the Related Documents, the
provisions of this Article and Section 8.04 shall continue in effect for the benefit of such retiring
or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of
any actions taken or omitted to be taken by any of them while the retiring or removed
Administrative Agent was acting as Administrative Agent.
(d) Notwithstanding anything in this Section 7.05 to the contrary, the retiring or
removed Administrative Agent shall continue to hold any collateral (including cash collateral and
collateral held under any Pledge Agreement) as bailee for the benefit of the LC Issuing Banks and
the Lenders until a successor Administrative Agent has been appointed in accordance with this
Section 7.05.
SECTION 7.06. Non-Reliance on Administrative Agent and (hher Lenders.
Each Lender and LC Issuing Bank acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender and LC Issuing Bank also
acknowledges that it will, independently and without reliance upon the Administrative Agent or
70
any other Lender or any of their Related Parties and based on such documents and information as
it itralt from time to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any other Loan Document, any Related
Document or any related agreement or any document furnished hereunder or thereunder.
SECTION 7.07. Indemniftcation.
Each Lender severally agrees to indemniff the Administrative Agent (to the extent not
promptly reimbursed by the Borrower and without limiting its obligation to do so) from and against
such Lender's Commitment Percentage of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nafure
whatsoever that may be imposed on, incurred by, or asserted against the Administrative Agent in
any way relating to or arising out of this Agreement, any other Loan Document or any Related
Document or any action taken or omitted by the Administrative Agent under this Agreement, any
other Loan Document or any Related Document; p rovided, however, that no Lender shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, eipenses or disbursements resulting from the Administrative Agent's gross negligence or
willful misconduct, as proven in a court of competent jurisdiction by final and nonappealable
judgment. Without iimitation of the foregoing, each Lender agrees to reimburse the
Aditinistrative Agent promptly upon demand for its Commitment Percentage of any costs and
expenses (including, without limitation, fees and reasonable expenses of counsel) payable by the
Borrower under Section 8.04, to the extent that the Administrative Agent is not promptly
reimbursed for such costs and expenses by the Borrower (and without limiting its obligation to do
so) after request therefor. The failure of any Lender to reimburse the Administrative Agent
promptly upon demand for its Commitment Percentage of any amount required to be paid by the
Lendir io it. Administrative Agent as provided herein shall not relieve any other Lender of its
obligation hereunder to reimburse the Administrative Agent for its Commitment Percentage of
such amount, but no Lender shall be responsible for the failure of any other Lender to reimburse
the Administrative Agent for such other Lender's Commitment Percentage of such amount'
Without prejudice to the survival of any other agreement of any Lender hereunder, the agreement
and obligatiLns of each Lender contained in this Section 7.07 shall survive the payment in fullof
principal, interest and all other amounts payable hereunder.
SECTION 7.08. No Other Duties, etc.
Anything herein to the contrary notwithstanding, none of the Joint Lead Arangers, the
"Joint Bookrunners", the "syndication Agents" or the Documentation Agents listed on the cover
page hereof shall have any powers, duties or responsibilities under this Agreement, any other Loan
bocument or any Related Document, except in its capacity, as applicable, as the Administrative
Agent, a Lender or an LC Issuing Bank hereunder or thereunder.
7t
ARTICLE YIII
lVtrSCELLANEOUS
SECTION 8.01. Amendments, Etc.
Subject to Section 2.12(c) and Section 2.21(a)(i),no amendment or waiver of any provision
of this Agreement, nor consent to any departure by the Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Required Lenders and the Borrower,
and then such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that, no amendment, waiver or consent shall, unless
in writing and signed by each Lender directly affected thereby (other than, in the case of clause (i)
or (v) below, any Defaulting Lender), do any ofthe following: (i) amend Section 3.01,3.02 or 3.03
or waive any of the conditions specified therein, (ii) increase the Commitment of any Lender or
extend the Commitments (except pursuant to Section 2.06 or 2.07), (iii) reduce the principal of, or
interest on, or rate of interest applicable to, the outstanding Loans or any fees or other amounts
payable hereunder, (iv) postpone any date fixed for anypayment of principal of or interest on, the
outstanding Loans, reimbursement obligations or any fees or other amounts payable hereunder, (v)
change the definition of Required Lenders or change the percentage of the Commitments or of the
aggregate unpaid principal amount of the outstanding Borrowings, or the number or the percentage
of Lenders, that shall be required for the Lenders or any of them to take any action hereunder, or
(vi) amend or waive this Section 8.01 or any provision of this Agreement that requires pro rata
treatment of the Lenders; and provided further that (x) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent or any LC Issuing Bank in addition to
the Lenders required above to take such action, affect the rights or duties of the Administrative
Agent or such LC Issuing Bank, as the case may be, under this Agreement and (y) no amendment,
waiver or consent shall, unless in writing and signed by the Administrative Agent, each LC Issuing
Bank and the Required Lenders, amend or waive Section 2.21. Notwithstanding the foregoing,
any provision of this Agreement may be amended by an agreement in writing entered into by the
Borrower, the Required Lenders and the Administrative Agent if by the terms of such agreement
the Commitment of each Non-Consenting Lender and the obligations of each LC Issuing Bank not
consenting to the amendment provided for therein shall terminate (but such Non-Consenting
Lender or LC Issuing Bank shall continue to be entitled to the benefits of Sections 2.15,2.18 and,
8.04) upon the effectiveness of such amendment, and such Non-Consenting Lender or LC Issuing
Bank shall have received or shall at the time of such termination receive payment of an amount
equal to the outstanding principal of its Loans and any participations in Letters of Credit funded
pursuant to Section 2.04(e), together with all applicable accrued interest thereon, accrued fees and
all other amounts then payable to it hereunder and under the other Loan Documents.
SECTION 8.02. Notices, Etc.
(a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (b) below), all
notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as
follows:
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(i) if to the Borrower, to it at 825 N.E. Multnomah Street, Suite 1900, Portland,
Oregon 97232-4116, Attention: Nikki L. Kobliha, Vice President, Chief Financial Officer
and Treasurer (Facsimile: (503) 813-5625; Telephone No. (503) 813-5645);
if to the Administrative Chase B N.A. at
(iii) if to any LC Issuing Bank identified on Schedule II hereto, at the address
specified opposite its name on Schedule II hereto, and if to any other LC Issuing Bank, at
such address as shall be designated by such LC Issuing Bank in a written notice to the
Administrative Agent and the Borrower;
(iv) if to any Initial Lender, at its Domestic Lending Office specified opposite
its name on Schedule I hereto, and if to any other Lender at its Domestic Lending Office
specified in the Assignment and Assumption pursuant to which it became a Lender.
Notices sent by hand or ovemight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by facsimile shall be deemed to have
been given when sent (except that, if not given during normal business hours for the recipient,
shall be deemed to have been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications, to the extent provided in
subsection (b) below, shall be effective as provided in said subsection (b).
(b) Electronic Communicafiorcs. Notices and other communications to the Lenders
and the LC Issuing Banks hereunder may be delivered or furnished by electronic communication
(including e-mail and Itxtemet or intranet websites) pursuant to procedures approved by the
Administrative Agent,provided that the foregoing shall not apply to notices to any Lender or any
LC Issuing Bank pursuant to Section 2.02 or 2.04 if such Lender or such Issuing Bank, as
applicable, has notified the Administrative Agent that it is incapable of receiving notices under
such Section by electronic communication. The Administrative Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it providedthat approval of such procedures
may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the sender's receipt of
an acknowledgement from the intended recipient (such as by the "return receipt requested"
function, as available, return e-mail or other wriffen acknowledgement), and (ii) notices or
communications posted to an lnternet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient, at its e-mail address as described in the foregoing
clause (i), of notification that such notice or communication is available and identifying the
website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, email or
other communication is not sent during the normal business hours of the recipient, such notice or
73
communication shall be deemed to have been sent at the opening of business on the next business
day for the recipient.
(c) Change of Address, etc. Any party hereto may change its address or facsimile
number for notices and other communications hereunder by notice to the other parties hereto.
(d) Platfurm.
(i) The Borrower agrees that the Administrative Agent may, but shall not be
obligated to, make the Communications (as defined below) available to the LC Issuing
Banks and the other Lenders by posting the Communications on Debt Domain, Intralinks,
Syndtrak or a substantially similar electronic transmission system (the "Platform").
(ii) The Platform is provided "as is" and'oas available." The Agent Parties (as
defined below) do not warrant the adequacy of the Platform and expressly disclaim liability
for errors or omissions in the Communications. No warranty of any kind, express, implied
or statutory, including, without limitation, any war:ranty of merchantability, fitness for a
particular purpose, non-infringement of third-party rights or freedom from viruses or other
code defects, is made by any Agent Party in connection with the Communications or thePlatform. In no event shall the Administrative Agent or any of its Related parties
(collectively, the ooAgent Parties*) have any liability to the Borrower, any Lender or any
other Person or entity for damages of any kind, including, without limitation, direct or
indirect, special, incidental or consequential damages, losses or expenses (whether in tort,
contract or otherwise) arising out of the Borrower's or the Administrative Agent's
transmission of communications through the Platform except to the extent that such
damages are found in a judgment by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from such Agent Party's gross negligence orwillful misconduct. "Communications" means, collectively, any notice, demand,
communication, information, document or other material provided by or on behalf of the
Borrower pursuant to any Loan Document or the transactions contemplated therein which
is distributed to the Administrative Agent, any Lender or any LC Issuing Bank by means
of electronic communications pursuant to this Section, including through the platform.
SECTION 8.03. No Waiver; Remedies.
No failure on the part of any Lender or the Administrative Agent to exercise, and no delay
in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any remedies provided
by law.
SECTION 8.04. Costs and Expenses; fndemniJication.
(a) The Borrower agrees to pay promptly upon demand (i) all reasonable out-of-pocket
costs and expenses of the Administrative Agent, the Joint Lead Arrangers and their respective
Affiliates in connection with the preparation, negotiation, execution, delivery administration,
modification and amendment of this Agreement and the other documents to be delivered
hereunder, including, without limitation, (A) all due diligence, syndication (including printing,
74
distribution and bank meetings), transportation, computer, duplication, appraisal, consultant, and
audit expenses and (B) the reasonable fees and expenses of counsel for the Administrative Agent
with respect thereto and with respect to advising the Administrative Agent as to its riglrts and
."rporrribilities under this Agreement, and (ii) all reasonable out of pocket expenses incurred by
*V fC Issuing Bank in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder. The Borrower furlher aglees to pay
promptlyupon demand all reasonable costs and expenses of the Administrative Agent, the Lenders
ana itre-rC Issuing Banks, if any, (A) in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement and the other Loan Documents,
inJtuding its rights under this Section, or (B) in connection with the Loans made or Letters of
Credit issued hereunder, including all such reasonable out-of-pocket expenses incurred during any
workout, restructuring or negotiutiot r in respect of such loans or Letters of Credit, including,
without limitation, re-asonable fees and expenses of one outside counsel for the Administrative
Agent, the Lenders and the LC Issuing Banks taken as a whole in connection with the enforcement
oi6gtrts under this Section 8.04(a) (and, with respect to matters referred to in clause (A) of this
sentence only, separate counsel for the Administrative Agent, any Lender and any LC Issuing
Banks to the extent needed to avoid an actual or potential conflict of interest).
(b) The Borrower shall indemnify the Administrative Agent (and any sub-agent
thereog, the Joint Lead Arrangers, each Lender and each LC Issuing Bank, and each Related Party
of any'of the foregoing Persons (each, an"Indemnifted. Party") from and against any and all
claims, damages, losseJ and liabilities, joint or several, to which any such Indemnified Party may
become subject, in each case arising out of or in connection with or relating to (including, without
limitation, in connection with any investigation, litigation or proceeding or preparation of a defense
in connection therewith) this Agreement, any of the transactions contemplated herein or the actual
or proposed use of the proceeds of the Extensions of Credit, and shall reimburse any Indemnified
party ior any and all ieasonable expenses (including, without limitation, reasonable fees and
"*p"rr., of counsel) as they are incurred in connection with the investigation of or preparation for
or defense of any pending or threatened claim or any action or proceeding arising therefrom,
whether or not rr"h lod".rrifred Party is a party (but if not apafiy thereto, then only with respect
to such proceedings where such Indemnified Party (i) is subject to legal process or other
compulsion of Uw, (ii) believes in good faith that it will be so subject, or (iii) believes in good
faittrthat it is necessary or appropriate for it to resist any legal process or other compulsion of law
which is purported to 6e asserted against it) and whether or not such claim, action or proceeding
is initiated oi brought by or on behalf of the Borrower or any of its Affiliates and whether or not
any of the transactions contemplated hereby are consrmrmated or this Agreement is terminated,
r*l"pt to the extent such claim, da-age, loss, liability or expense is found in a judgment by a court
of competent jurisdiction by final and nonappealable judgment to have resulted from such
Indemnified Party's gross negligence, bad faith or willful misconduct. In the case of an
investigation, litigation or otheiproceeding to which the indemnity in this Section 8.040) applies,
such iridemnity shall be effective whether or not such investigation, litigation or proceeding is
brought by the Borrower, its directors, shareholders or creditors or an Indemnifred Party or any
other Person or any Indemnified Party is otherwise a paf thereto and whether or not the
transactions contemplated hereby are consurtmated. The Borrower agrees not to assert any claim
against the Administrative Agent, any Lender, any of their respective Affrliates, or any of their
rJspective directors, officers, employees, attorneys and agents, on any theory of liability, for
,p""iul, indirect, consequential oi punitive damages arising out of or otherwise relating to this
75
Agreement, any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Extensions of Credit. This Section 8.0a@) shall not apply wittirespect to Taxes
that are Indemnified Taxes, Excluded Taxes or Taxes that are covered by Section 2.15(a)(ii).
(c) If any payment of principal of or Conversion of, any Eurodollar Rate Revolving
Loan is made by the Borrower to or for the account of a Lender other than on the last day of the
lnterest Period for such Revolving Loan, as a result of a payment or Conversion pursuant to Section
2.06(c), 2.07(c), 2.09, 2.12(b), 2.13, 2.L4, 2.15 or 2.16, acceleration of the maturity of the
outstanding Borrowings pursuant to Section 6.01, assignment to another Lender upon demand of
the Borrowerpursuant to Section 2.20(b) or for any other reason (in the case of any such payment
or Conversion), the Borrower shall, promptly upon demand by such Lender (wittr a copy oisuch
demand to the Administrative Agent), pay to the Administrative Agent for the account of suchLender any amounts required to compensate such Lender for any additional losses, costs or
expenses that it may reasonably incur as a result of such payment or Conversion, including, without
limitation, any loss (other than loss of Applicable Margin), cost or expense incurred byieason of
the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Loan.
(d) Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower contained in Sections 2.15,2.16,2.1g
and 8.04 shall survive the payment in full of principal, interest and all other amounts payable
hereunder.
(e) The Borrower agrees that no Indemnified Party shall have any liability (whether
direct or indirect, in contract or tort or otherwise) to the Borrower or its respective security holders
or creditors related to or arising out of or in connection with this Agreement, the Extensions of
Credit or the use or proposed use of the proceeds thereof, any of the transactions contemplated by
any of the foregoing or in the loan documentation and the performance by an Indemnified party
by any of the foregoing except to the extent that any loss, claim, damage, liability or expense isfound in a judgment by a court of competent jurisdiction by final and nonappealable judgment to
have resulted from such Indemnified Party's gross negligence or willful misconduct.
(D In the event that an Indemnified Party is requested or required to appear as a witnessin any action brought by or on behalf of or against the Borrower or any of its affiliates in which
such Indemnified Party is not named as a defendant, the Borrower agrees to reimburse such
lndemnified Party for all reasonable expenses incurred by it in connection with such Indemnified
Party's appearing and preparing to appear as such a witness, including, without limitation, the fees
and disbursements of its legal counsel.
SECTION 8.05. Right of Sa-olf,
Upon (i) the occurrence and during the continuance of any Event of Default and (ii) themaking of the request or the granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the outstanding Borrowings due and payable pursuant to the
provisions of Section 6.01, each Lender, each LC Issuing Bank and each of their respective
Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted byApplicable Law, to set off and apply any and all deposits (general or special, time or demand,
76
provisional or final, in whatever currency) at any time held, and other obligations (in whatever
furrency) at any time owing, by such Lender, such LC Issuing Bank or any such Affiliate, to or
for the credit orthe account of the Borrower against any and all of the obligations of the Borrower
now or hereafter existing under this Agreement or any other Loan Document to such Lender, such
LC Issuing Bank or their respective Affiliates, irrespective of whether or not such Lender, such
LC Issuin! Bank or such Affiiiate shall have made any demand under this Agreement or any other
Loan Docirment and although such obligations of the Borrower may be contingent or unmatured
or are owed to a branch, office or Affiliate of such Lender, such LC Issuing Bank different from
the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided
that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts
so set off shall be paidover immediately to the Administrative Agent for further application in
accordance with the provisions of Section 2.21 and,pending such payment, shall be segregated by
such Defaulting Lender from its other funds and deemed held in trust for the benefit of the
Administrative Agent, the LC Issuing Banks, and the Lenders, and (y) the Defaulting Lender shall
provide promptly to the Administrative Agent a statement describing in reasonable detail the
oUtigations oftt l Borrower owing to such Defaulting Lender as to which it exercised such right
of sJtoff. The rights of each Lender, each LC Issuing Bank and their respective Affrliates under
this Section are in addition to other rights and remedies (including other rights of setoff) that such
Lender, such LC Issuing Bank or theii respective Affiliates may have. Each Lender and each LC
IssuingBank agrees to notify the Borrower and the Administrative Agent promptly after any such
setoffLd appfcation; prouid"d that the failure to give such notice shall not affect the validity of
such setoff and application.
SECTION 8.06. Binding Effect
This Agreement shall become effective when it shall have been executed by the Borrower
and the Administrative Agent and when the Administrative Agent shall have been notified by each
Initial Lender that such n itiut Lender has executed it and thereafter shall be binding upon and
inure to the benefit of the Borrower, the Administrative Agent each Lender and each LC Issuing
Bank (upon its appointment pursuant to Section 2.04) and their respective successors and assigns,
"*".pittrut the Bonower shail not have the right to assign its rights hereunder or any interest herein
without the prior written consent of all of the Lenders.
SECTION 8.07. Assignments and Participations.
(a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding'upon and inure to the benefrt of the parties hereto and their respective successors and
arrignJper-itted hereby, except that the Borrower may not assign or otherwise transfer any of its
rigfi oi obligations herlunder without the prior written consent of the Administrative Agent, each
Lender and each LC Issuing Bank, and no Lender may assign or otherwise transfer any of its rights
or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection
@) of tf,is Section, (ii) by way of participation in accordance with the provisions of subsection (d)
of this Section, or'1iii;-by way of pledge or assignment of a security interest subject to the
restrictions of subsection (e) of this Section (and any other attempted assignment or transfer by
any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall
be-construed to confer upon any Person (other than the parties hereto, their respective successors
and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section
77
and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative
Agent, the LC Issuing Banks and the Lenders) any legal or equitable right, remedy or claim under
or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all or aportion of its Commitment and the Loans at the time owing to it); provided that any such
assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the
assigning Lender's commitment andlor the Loans at the time owing to it or
contemporaneous assignments to related Approved Funds that equal at least the
amount specified in subsection (b)(i)(B) of this Section in the aggregate or in the
case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund,
no minimum amount need be assigned; and
(B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the applicable Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if "Trade
Date" is specified in the Assignment and Assumption, as of the Trade Date) shall
not be less than $5,000,000, or an integral multiple of $1,000,000 in excess thereof,
unless each of the Administrative Agent and, so long as no Default has occurred
and is continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed).
(iD Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and obligations under
this Agreement with respect to the Loan or the commitnent assigned.
(iii) Required Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in addition:
(A) the consent of the Borrower (such consent not to be unreasonably
withheld or delayed) shall be required unless (x) an Event of Default has occurred
and is continuing at the time of such assignment, or (y) such assignment is to a
Lender or an Affiliate of a Lender; provided that the Borrower shall be deemed to
have consented to any such assignment unless it shall object thereto by written
notice to the Administrative Agent within ten Business Days after havingreceived
written notice thereof;
(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments if such
78
assignment is to a Person that is not a Lender with a Commitment or an Affrliate of
such Lender; and
(C) the consent of each LC Issuing Bank (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment.
(iv) Assignment andAssumption. Theparties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500;provided that the Administrative Agent may, in
its sole discretion, elect to waive such processing and recordation fee in the case of any
assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire.
(v) No Assignment to Certain Persons. No such assignment shall be made to
(A) the Borrower or uny of the Borrower's Affiliates (except for any Affiliate of Berkshire
Hathaway not controlled directly or indirectly by the Borrower that is a commercial lender
acquiring rights and obligations under this Agreement in the ordinary course of its
tusiness) orBubsidiari"r oi 1n; to any Defaulting Lender or any of its Subsidiaries, or any
person who, upon becoming a Lender hereunder, would constifute any of the foregoing
Persons described in this clause (B).
(vi) No Assignment to Natural Persons. No such assignment shall be made to
a natural Person.
(vii) Certain Additional Payments. [r connection with any assignment of rights
and obligations of any Defaulting Lender hereunder, no such assignment shall be effective
unless and until, in addition to the other conditions thereto set forth herein, the parties to
the assignment shall make such additional payments to the Administrative Agent in an
aggregate amount sufficient, upon distribution thereof as appropriate (which may be
o"irigfrt payment, purchases by ihe assignee of participations or subparticipations, or other
comp,-ensating actions, including funding, with the consent of the Borrower and the
Administrative Agent, the applicable pro rata share of Loans previously requested but not
funded by the Deladting tinder, to each of which the applicable assignee. and assignor
hereby irrevocably "o.rr.r9, to (x) pay and satisfy in full all payment liabilities then owed
by such Defaulting Lender to the Administrative Agent, each LC Issuing Bank and each
other Lender herJunder (and interest accrued thereon), and (y) acquire (and fund as
appropriate) its full pro rata share of all Loans and participations in Letters of Credit in
uirord*". with its Commitnent Percentage. Nofiilithstanding the foregoing, in the event
that any assignment of rights and obligations of any Defaulting Lender hereunder shall
become effective under Appficable Law without compliance with the provisions of this
subsection, then the assignee of such interest shall be deemed to be a Defaulting Lender
for all purposes of this Agteement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection
1c; of tfris Section, from and after the effective date specified in each Assignment and Assumption,
it " u.rign." thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by sucli Assignment and Assumption, have the rights and obligations of a Lender under this
79
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreementland, in
the case of an Assignment and Assumption covering all of the assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party hereto) but shall iontinue
to be entitled to the benefits of Sections 2.15,2.18 and 8.04 with respect to facts and circumstances
occurring prior to the effective date of such assignment; provided, that except to the extent
otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will
constitute a waiver or release of any claim of any party hereunder arising from that Lender,s having
been a Defaulting Lender. Any assignment or transfer by a Lender olrights or obligations undei
this Agreement that does not comply with this subsection shall be treated for purposes of thisAgreement as a sale by such Lender of a participation in such rights and obligations in accordance
with subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at its address referred to in Sectio" S.OZ a copy of
each Assignment and Assumption delivered to it and a register for the recordation of the ,u-e,
and addresses of the Lenders, and the Commitments and Termination Date of, and principal
amounts (and stated interest) ofthe Loans owing to, each Lenderpursuant to the terms hereof from
time to time (the *Registef'). The entries in the Register shall be conclusive absent manifest error,
and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name
is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower, any LC Issuing
Bank and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d) Participations Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
Person or the Borrower or any of the Borrower's Affiliates (except for any Affiliate of Berkshire
Hathaway not controlled directly or indirectly by the Borrower that is a commercial lender
acquiring participations under this Agreement in the ordinary course of its business) or
Subsidiaries) (each, a"Participanf') in all or a portion of such Lender's rights and/or obligaiions
under this Agreement (including all or a portion of its Commitment and/or the l,oans owing to i0;provided that (i) such Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the performance of such
obligations, and (iii) the Borrower, the Administrative Agent, the LC Issuing Banks and Lenders
shall continue to deal solely and directly with such Lender in connection with such Lender,s rights
and obligations under this Agreement. For the avoidance of doubt, each Lender shall beresponsible for the indemnity under Section 7.07 with respect to any payments made by such
Lender to its Participant(s).
Any agreement or instrument pursuant to which a Lender sells such a participation shallprovide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or insffument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in Section 8.01 requiring
the consent of each Lender directly affected thereby that directly affects such Participant Th;
Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15,2.18 arrd.
8.04(c) (subject to the requirements and limitations therein, including the requirements under
80
Section 2.18(g) (it being understood that the documentation required under Section 2.18(g) shall
be delivered to the partiJipating Lender or the applicable Withholding Agent to the extent required
by Applicable Law)) to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section;providedthat such Panicipant (A) agrees to
ue sluuject to the provisions of Section 2.20 as if it were an assignee under subsection (b) of this
Section; and (B) shall not be entitled to receive any greater payment under Section 2-15 or 2.18,
with respect to any participation, than its participating Lender would have been entitled to receive.
Each Linder that sells a participation agrees, at the Borrower's request and expense, to use
reasonable efforts to cooperate with the Bonower to effectuate the provisions of Section 2.20(b)
with respect to any participant. To the extent permitted by law, each Participant also shall be
entitled io the benifits of Siction 8.05 as though it were a Lender; provided that such Participant
agrees to be subject to Section 2.19 as though it were a T ender. Each Lender that sells a
p"articipation shali, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain
u .egister on which it enters the name and address of each Participant and the principal amounts
(anJstated interest) of each Participant's interest in the Loans or other obligations under the Loan
iocuments (the "Participant Registef'); provided that no Lender shall have any obligation to
disclose all or any portion of the Farticipant Register (including the identity of any Participant or
any information ieiating to a Participuri', int"..st in any Commitments, Loans, Letters of Credit
or its other obligations-under any Lban Document) to any Person except to the extent that such
disclosure is necessary to establish that such Commitnent, I-oan, Letter of Credit or other
obligation is in registered form under Section 5f.103-l(c) of the United States Treasury
Regilations or to co,-mply with other requirements under applicable tax law. The entries in the
paiicipant Register st ati Ue conclusive absent manifest error, and such Lender shall treat each
person whose name is recorded in the Participant Register as the owner of such participation for
all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of
doubt,'the Administrative Agent (in its capacrty as Administrative Agent) shall have no
responsibility for maintaining a Participant Register.
(e) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all oi any portion of its rights under this Agreement to secure obligations of such Lender,
including *y pt"dg. or assignment to secure obligations to a Federal Reserve Bank or any other
central bankh'g u,rlhority; piovided that no such pledge or assignment shall release such Lender
from any of its obligations trereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 8.0 8. ConJidentialitY.
Neither the Administrative Agent nor any Lender shall disclose any Confidential
Information to any other Person without the consent of the Borrower, other than (i) to the
Administrative Agint's or such Lender's Affiliates and their officers, directors, employees, agents
and advisors, to the Administrative Agent or a Lender and, as contemplated by Section 8.07, to
actual or prospective assignees and participants, and then only on a confidential basis, (ii) as
required by ""y law, rule or regulation or judicial process, (iii) to any rating agency when required
by-it, proiidei,that,prior to any such disclosure, such rating agency, commercial paper dealer or
prorlO"r shall undertake to preserve the confidentiality of any Confidential Information received
fy it from such Lender, (iv) as requested or required by any state, federal or foreign authority or
eiaminer regulating banks, banking or other financial institutions, (v) to any direct, indirect, actual
81
or prospective counterparty (and its advisor) to any swap, derivative or securitization transaction
related to the obligations under this Agreement on a confidential basis, (vi) to any credit insurance
provider relating to the Borrower and its obligations on a confidential basis and (vii) pursuant to a
request or requirement from a regulatory authority (governmental or non-governmental self-regulatory authority) having jurisdiction over a Lender; provided that unless prohibited by
Applicable Law, each Lender and the Administrative Agent agree, prior to disclosure thereof, to
notifu the Borrower of any request for disclosure of any such Confidential Information (x) by any
Govemmental Authority or representative thereof (other than any such request in connection with
an examination of such Lender or the Administrative Agent by such Governmental Authority) or
(y) pursuant to legal process.
SECTION 8.09, Governing Law.
EACH LOAN DOCUMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEWYORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD
REQUIRE APPLICATION OF ANOTHER LAW.
SECTION 8.70. Severability.
In the event any one or more of the provisions contained in this Agreement should be held
invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or impaired hereby.
SECTION 8,11. Execution in Counterparts.
This Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page to this Agreement by telecopier or other electronic
transmission (including by e-mail with a PDF attachment of an executed counterpart) shall be
effective as delivery of an original executed counterpart of this Agreement.
SECTION 8.12. Jurisdiction, Etc.
(a) Each party hereto hereby irrevocably and unconditionally agrees that it will not
commence any action, litigation or proceeding of any kind or description, whether in law or equity,
whether in contract or in tort or otherwise, against the Administrative Agent, any Lender, arry L{
Issuing Bank, or any Related Party of the foregoing in any way relating to this Agreement or any
other Loan Document or the transactions relating hereto or thereto, in any forum other than the
courts of the State of New York sitting in the Borough of Manhattan in New York City, and of the
United States District Court of the Southern District of New York siuing in the Borough of
Manhattan in New York City, and any appellate court from any thereof, and each of the parties
hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agreis that
all claims in respect of any such action, litigation or proceeding may be heard and determined in
such New York State court or, to the fullest extent permitted by applicable law, in such federal
court. Each party hereto agrees that a final judgment in any such action, litigation or proceeding
82
shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law.
(b) The Borrower irrevocably and unconditionally waives, to the fullest extent
permittedby Applicable Law, any objection that it may now or hereafter have to the laying of
,.rr.r. of any u.tion or proceeding arising out of or relating to this Agreement or any other Loan
Document in any court referred to in paragraph (a) of this Section. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by applicable law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.
(c) Each party hereto irrevocably consents to service of process in the manner provided
for notices in Section 8.02. Nothing in this Agreement will affect the right of any party hereto to
serve process in any other manner permitted by Applicable Law.
SECTION 8.13. Waiver of Jury TriaL
EACH PARTY HERETO HEREBY IRREVOCABLY WATVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRTAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
CoNTRACT, TORT OR ANY OTHER THEORY) OR THE ACTIONS OF THE
ADMINISTRATTVE AGENT, ANY LC NSUING BANK, THE BORROWER OR ANY
LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR
ENFORCEMENT THEREOF. TO THE EXTENT THEY MAY LEGALLY DO SO,
BORROWER, THE ADMINISTRATTVE AGENT, THE LC ISSUING BANKS AND THE
LENDERS HEREBY AGREE THAT ANY SUCH CLAIM, DEMAND, ACTION, CAUSE OF
ACTION, OR PROCEEDING SHALL BE DECIDED BY A COURT TRIAL WITHOUT A
ruRY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE OTHER PARTY OR PARTIES HERETO TO WAWER OF ITS OR THEIR
RIGHT TO TRIAL BY JURY. EACH PARTY HERETO (i) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER
AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WATVERS AND CERTIFICATIONS IN THIS
SECTION.
SECTION 8.14. USA Patriot Act
Each Lender that is subject to the Patriot Act and the Administrative Agent (for itself and
not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the
USA patriot Act (Title III of Pub. L. lO7 -56 (signed into law as of Octob er 26,2001)) (as amended,
restated, modified or otherwise supplemented from time to time, the "Patriot Acf"), it is required
to obtain, verify and record information that identifies the Borrower, which information includes
83
the name and address of the Borrower and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify the Borrower in accordance with the Patriot Act.
The Borrower shall, and shall cause each of its Subsidiaries to, provide to the extent commercially
reasonable, such information and take such actions as are reasonably requested by the
Administrative Agent or any Lender in order to assist the Administrative Agent and the Lenders
in maintaining compliance with the Patriot Act.
SECTION 8.15. No Fiduciary DuO.
The Credit Parties and their respective Affiliates (collectively, solely for purposes of this
Section, the "Lender Parties"), may have economic interests that conflict with those of the
Borrower, its securities holders and/or their Affiliates. The Borrower agrees that nothing in the
Loan Documents or the Related Documents will be deemed to create an advisory, fiduciary or
agency relationship or fiduciary or other implied duty between any Lender Party, on the one hand,
and the Borrower, its securities holders or its Affiliates, on the other hand. The Borrower
acknowledges and agrees that (i) the transactions contemplated by the Loan Documents and the
Related Documents (including the exercise of rights and remedies hereunder and thereunder) are
arm's-length commercial transactions between the Lender Parties, on the one hand, and the
Borrower, on the other, and (ii) in connection therewith and with the process leading thereto, (x)
no Lender Party has assumed an advisory or fiduciary responsibility in favor of the Borrower, its
securities holders or its Affiliates with respect to the transactions contemplated hereby (or the
exercise of rights or remedies with respect thereto) or the process leading thereto (inespective of
whether any Lender Party has advised, is currently advising or will advise the Borrower, its
securities holders or its Affiliates on other matters), and (y) each Lender Party is acting solely as
principal hereunder and under the other Loan Documents and the Related Documents and not as
the agent or fiduciary of the Borrower, its management, securities holders or creditors. The
Borrower acknowledges and agrees that it has consulted its own legal and financial advisors to the
extent it deemed appropriate and that it is responsible for making its own independent judgment
with respect to such transactions and the process leading thereto. The Borrower agrees that it will
not claim that any Lender Party has rendered advisory services ofany nature or respect, or owes a
fiduciary or similar duty to the Borrower, in connection with the transactions contemplated by the
Loan Documents or the Related Documents or the process leading thereto.
SECTION 8.16. Acknowledgement and Consent to Bail-In of EEA Financial
Institutions.
Notwithstanding anything to the contrary in any Loan Document or in any other agreement,
arangement or understanding among any such parties, each party hereto acknowledges that any
liability of any EEA Financial Institution arising under any Loan Document may be subject to the
write-down and conversion powers of an EEA Resolution Authority and agrees and consents to,
and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by an EEA
Resolution Authority to any such liabilities arising hereunder which may be payable to it by any
party hereto that is an EEA Financial Institution; and
84
(b) the effects of any Bail-In Action on any such liability, including, if
applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other
instruments of ownership in such EEA Financial Institution, its parent entity, or a bridge
institution that may be issued to it or otherwise conferred on it, and that such shares or
other instruments of ownership will be accepted by it in lieu of any rights with respect to
any such liability under this Agreement or any other [,oan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of
the write-down and conversion powers of any EEA Resolution Authority.
SECTION 8.17. Novation; Reaffirmation.
The Borrower agrees that this Agreement amends and restates and is substituted for (and
is not executed in novation of) the Existing Credit Agreement and that the outstanding obligations
of the Borrower under the Existing Credit Agreement (as well as any new obligations incurred on
the Closing Date) are now evidenced by this Agreement. All'ol-oans" and'oBorrowings" made
and other obligations incurred under (and as defined in) the Existing Credit Agreement which
remain outstanding on the Closing Date shall continue as Loans, Borrowings and other obligations
under (and shall be governed by the terms of) this Agreement and the other Loan Documents and
the Borrower hereby reaffirms all such obligations after giving effect to the amendment and
restatement of the Existing Credit Agreement pursuant to this Agreement.
SECTION 8.18. Certain ERISA Matters.
(a) Each Lender (x) represents and warrants, as of the date such Person became a
Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto
to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative
Agent and each Joint Lead Aranger and their respective Affiliates, and not, for the avoidance of
doubt, to or for the benefit of the Borrower, that at least one of the following is and will be true:
(i) such Lender is not using "plan assets'o (within the meaning of 29 CFR
$2510.3-101, as modifiedby Section 3@2) of ERISA) of one ormore Benefit Plans in
connection with the Loans, the Letters of Credit or the Commitments,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE84-14
(a class exemption for certain transactions determined by independent qualified
professional asset managers), PTE 95-60 (a class exemption for certain transactions
involving insurance company general accounts), PTE 90-l (a class exemption for certain
transactions involving insurance company pooled separate accounts), PTE 91-38 (a class
exemption for certain transactions involving bank collective investment funds) or PTE 96-
23 (a class exemption for certain transactions determined by in-house asset managers), is
applicable with respect to such Lender's entrance into, participation in, administration of
and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
85
(iii) (A) such Lender is an investment fund managed by a "Qualified
Professional Asset Manager" (within the meaning of Part VI of PTE 84-14), (B) such
Qualifred Professional Asset Manager made the investment decision on behalf of such
Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit,
the Commitments and this Agreement, (C) the entrance into, participation in,
administration of and performance of the Loans, the Letters of Credit, the Commitments
and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of
PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection
(a) of Part I of PTE 84-14 are satisfied with respect to such Lender's entrance into,
participation in, administration of and performance of the Loans, the Letters of Credit, the
Commitments and this Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in
writing between the Administrative Agent, in its sole discretion, and such Lender.
(b) ln addition, unless sub-clause (i) in the immediately preceding clause (a) is true
with respect to a Lender or such Lender has not provided another representation, warranty and
covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender
further (x) represents and wa:rants, as of the date such Person became a Lender party hereto, to,
and (y) covenants, from the date such Person became a Lender party hereto to the date such Person
ceases being a Lender party hereto, for the benefit of, the Administrative Agent and each Joint
Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the
benefit of the Borrower, that:
(i) none of the Administrative Agent or any Joint Lead Arranger or any of their
respective Affiliates is a fiduciary with respect to the assets of such Lender (including in
connection with the reservation or exercise of any rights by the Administrative Agent under
this Agreement, any Loan Document or any documents related to hereto or thereto),
(ii) the Person making the investment decision on behalf of such Lender with
respect to the entrance into, participation in, administration of and performance of the
Loans, the Letters of Credit, the Commitments and this Agreement is independent (within
the meaning of 29 CFR $ 2510.3-21) and is a bank, an insurance ca:rier, an investrnent
adviser, a broker-dealer or other person that holds, or has under management or control,
total assets of at least $50 million, in each case as described in 29 CFR $ 2510.3-
2 I (cX I XiXA)-(E),
(iii) the Person making the investment decision on behalf of such Lender with
respect to the entrance into, participation in, administation of and performance of the
Loans, the Letters of Credit, the Commitments and this Agreement is capable of evaluating
investment risks independently, both in general and with regard to particular transactions
and investment strategies (including in respect of the obligations of the Borrower under
this Agreement or any other Loan Document),
(iv) the Person making the invesbnent decision on behalf of such Lender with
respect to the entrance into, participation in, administration of and performance of the
Loans, the Letters of Credit, the Commitments and this Agreement is a fiduciary under
86
ERISA or the Internal Revenue Code, or both, with respect to the Loans, the Letters of
Credit, the Commitrnents and this Agreement and is responsible for exercising independent
judgment in evaluating the transactions hereunder, and
(v) no fee or other compensation is being paid directly to the Administrative
Agent or any Joint Lead Arranger or any their respective Affiliates for investment advice
(as opposed to other services) in connection with the Loans, the Letters of Credit, the
Commitments or this Agreement.
(c) The Administrative Agent and each Joint Lead Aranger hereby informs the
Lenders that each such Person is not undertaking to provide impartial investnent advice, or to give
advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that
such Person has a financial interest in the transactions contemplated hereby in that such Person or
an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters
of Credit, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans,
the Letters of Credit or the Commitments for an amount less than the amount being paid for an
interest in the Loans, the Letters of Credit or the Commitrnents by such Lender or (iii) may receive
fees or other payments in connection with the transactions contemplated hereby, the Loan
Documents or otherwise, including structuring fees, commitrnent fees, arrangement fees, facility
fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral
agent fees, utilization fees, minimum usage fees, Ietter of credit fees, fronting fees, deal-away or
alternate transaction fees, amendment fees, processing fees, term out premiums, banker's
acceptance fees, breakage or other early termination fees or fees similar to the foregoing.
[Remainder of page intentionally left blank.]
PACIFICORP,
as Borrower
By /s/ Nikki T. Kohliha
Nikki L. Kobliha
Vice President, Chief Financial Officer and
Treasurer
Signature Page to PacifiCorp II Credit Agreement
JPMORGAN CHASE BANrq N.A.,
as Administrative Agent and Lender
By /V Juan Javellana
Name: JuanJavellana
Title: Executive Director
Signature Page to PacifiCorp II Credit Agreement
LEITIDERS:
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Lender and LC Issuing Bank
By /s/ Greqorv R. Gredvie
Name: Gregory R. Gredvig
Title: Director
Signature Page to PacifiCorp II Credit Agreement
MIZUHO BANK, LTD., as Le,nder
By /s/ Donna
Name: Donna DeMagistris
Title: Authorized Signatory
Sigrature Page to PacifiCorp II Credit Agreement
MUFG UNION BANK, N.A., as Lender
Bv ls/Jeffrev Flass
Name: Jeffrey Flagg
Title: Director
Signature Page to PacifiCorp II Credit Agreement
CIIBANK, N.A., as Lender
Bv /s/ Richard Rivera
Name: Richard Rivera
Title: Vice President
Sigrature Page to PacifiCorp II Credit Agreement
U.S. BANK NATIONAL ASSOCIATION, as
Lender
By /s/ Eric Cossrove
Name: Eric Cosgrove
Title: Senior Vice President
Sigrature Page to PacifiCorp II Credit Agreement
BARCLAYS BANK PLC, as knder
By /s/ Svdnev G-s
Name: Sydney G. Dennis
Title: Director
Sigrature Page to PacifiCorp II Credit Agreement
BNP PARIBAS, as Lender and LC Issuing Bank
By /s/ Denis O'Meara
Name: Denis O'Meara
Title: Managing Director
By /s/Ktrima Omar
Name: Karima Omar
Title: Vice President
Signature Page to PacifiCorp II Credit Agreemurt
ROYAL BANK OF CANADA, as Lender
By /s/.Tustin Painter
Name: Justin Painter
Title: Authorized Signatory
Sigrature Page to PacifiCorp II Credit Agreement
THE BANK OF NOVA SCOTIA, as Lender
By /s/ David at
Name: David Dewar
Title: Director
Sigrature Page to PacifiCorp II Credit Agreement
BANK OF MONTREAL, CHICAGO BRANCH,
as Lender
By /s/ Brian Ranke
Name: Brian Banke
Title: Managing Director
Signature Page to PacifiCorp II Credit Agreement
SUMITOMO MITSUI BANKING
CORPORATION, as Lender
By /s/ Katsuyuki Kubo
Name: Katsuyuki Kubo
Title: Managing Director
Signature Page to PacifiCorp II Credit Agreement
CANADIAN IMPERI.AL BANK OF
COMMERCE, NEW YORK BRANCH, as Lender
By /s/ Rohert Casew
Name: Robert Casey
Title: Authorized Signatory
By lsl R. Eadon
Name: Gordon R. Eadon
Title: Authorized Signatory
Signature Page to PacifiCorp II Credit Agreement
CoBank. ACB, as Lender
By /s/ John H. Kemner
Name: John H. Kemper
Title: Vice President
Signature Page to PacifiCorp II Credit Agreement
KeyBank National Association, as Lender
By /s/ Beni C Cooner
Name: Benjamin C Cooper
Title: Vice President
Signature Page to PacifiCorp II Credit Agreement
PNC BANK, NATTONAL ASSOCTATION, as
Lender
By /s/ Marieline T.. Ples
Name: Madeline L. Pleskovic
Title: Vice President
Signature Page to PacifiCorp II Credit Agreement
SUNTRUST BANK, as Lender
By /s/ Yann 11rl
Name: Yann Pirio
Title: Managing Director
Signature Page to PacifiCorp II Credit Agreement
TD Bank, N.A., as Lender
By lslYiiav Prasad
Name: Vrjay Prasad
Title: Senior Vice President
Signature Page to PacifiCorp II Credit Agreement
The Bank ofNew York Mellon, as Lender
By lsl K Fronanfel- Jr.
Name: Richard K. Fronapfel, Jr.
Title: Director
Sigrature Page to PacifiCorp II Credit Agreemott
BANCO SANTANDER, S.A., NEW YORK
BRANCH, as Lender
By /s/ Rita Walz-Cuccioli
Name: Rita Walz-Cuccioli
Title: Executive Director
By ls/Te;re;nce
Name: Terence Corcoran
Title: Executive Director
Sigrature Page to PacifiCorp II Credit Agreement
National Australia Bank Limited, as Lender
By /s/ Eli
Name: Eli Davis
Title: Associate Director
Sigrature Page to PacifiCorp II Credit Agreement
NATIONAL COOPERATIVE SERVICES
CORPORATION, as Lender
By /s/ Ann Shankroff
Name: Ann Shanlaoff
Title: Assistant Secretary-Treasurer
Sipature Page to PacifiCorp II Credit Agreement
The Northern Trust Company, as Lender
By
Name: Lisa Ddristofaro
Title: SVP
Signature Page to PacifiCorp II Credit Agreement
EXHIBIT A
(to the Credit Agreement)
FORM OF NOTICE OF BORROWING
A-2
EXHIBIT B
(to the Credit Agreement)
FORM OF REQITEST FOR TSSUAI\CE
JPMorgan Chase Bank, N.A., as Administrative Agent
for the Lenders party
to the Credit Agreement
referred to below
Attention: Letter of Credit Department
[ ], as LC Issuing Bank
[Date]
Ladies and Gentlemen:
The undersigned, PacifiCorp, refers to the Amended and Restated Credit Agreement, dated
as of April 30, 2018 (as further amended or modified from time to time, the"Credit Agreement,"
the terms defined therein being used herein as therein defined), among the undersigned, certain
Lenders and LC Issuing Banks party thereto, and JPMorgan Chase Bank, N.A., as Administrative
Agent, and hereby gives you notice pursuant to Section 2.04(a) of the Credit Agreement that the
undersigned hereby requests the issuance of a Letter of Credit (the "Requested Letter of Credif')
in accordance with the following terms:
(i) the LC Issuing Bank is
(ii) the requested date of [issuance] [extension] [modification] [amendment] of
the Requested Letter of Credit (which is a Business Day) is
(iii) the expiration date of the Requested Letter of Credit requested hereby is.l
(iv) the proposed stated amount of the Requested Letter of Credit is)
(v)
an address at
the beneficiary of the Requested Letter of Credit is with
and
(vi) the conditions under which a drawing may be made under the Requested
Letter of Credit are as follows and
(vii)any other additional conditions are as follows:
Date may not be later than the fifth Business Day preceding the Termination Date.
Must be minimum of $100,000.
B-2
The undersigned hereby certifies that the following statements are true on the date hereof,
and will be true on the date of the [issuance] [extension] [modification] [amendment] of the
Requested Letter of Credit:
(A) the representations and warranties contained in Section 4.01 of the Credit
Agreement (other than the representations and warranties in the first sentence of Section 4'01(9),
in Section 4.01(i) and in the first sentence of Section a.01(n) are true and correct in all material
respects on and as of the date hereof, before and after giving effect to the [issuance] [extension]
[modification] [amendment] of the Requested Letter of Credit and to the application of the
proceeds therefrom, as though made on and as of the date hereof; and
(B) no event has occurred and is continuing, or would result from the [issuance]
[extension] [modification] [amendment] of the Requested Letter of Credit or from the application
of the proceeds therefrom, that constitutes a Default.
[The undersigned hereby further certifies that, on the date of the issuance of the Requested
Letter of Credit, the conditions precedent set forth in Section 3.03 of the Credit Agreement will be
satisfied.l3
PACIFICORP
By
Name:
Title:
Consented to as of the datea
first above written:
[NAME OF LETTER OF CREDIT BENEFICTARY]
Name:
Title:
Necessary only for issuance of a Bond Letter of Credit
Necessary only for modification or amendment
j
4
EXHIBIT C
(to the Credit Agreement)
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the "Assignment and Assumption") is dated asof the Effective Date set forth below and is entered into by and between [the][each]r Assignor
identified in item I below ([the][each, an]"Assignor") and[the][each]2 Assignee identified in item
2 below ([the][each, an)"Assigneg'). llt is understood and agreed that the rights and obligations
of [the Assignors][the Assignees]3 hereunder are several and not joint.la Cipitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below (as amended,the'oCredit Agreemenf'), receipt of a copy of which is heieby acknowledged
by [the][each] Assignee. The Standard Terms and Conditions set forth in Annex i attached hereto
are hereby agreed to and incorporated herein by reference and made a part of this Assignment and
Assumption as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and
assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably
purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordancl
with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date
inserted by the Administrative Agent as contemplated below (i) all of [the Assignor,s][the
respective Assignors'l rights and obligations in [its capacity as a Lender][their -."rp.iiir"
capacities as Lenders] under the Credit Agreement and any other documents or instruments
delivered pursuant thereto to the extent related to the amount and percentage interest identified
below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors]
under the respective facilities identified below (including without limitation any letters of credit
and guarantees included in such facilities), and (ii) to the extent permitted to be assigned under
applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its
capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against
any Person, whether known or unknown, arising under or in connection with the Credit Agreement,
any other documents or instruments delivered pursuant thereto or the loan transactions governed
thereby or in any way based on or related to any of the foregoing, including, but not limited to,
contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in
equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights
and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to
clauses (i) and (ii) above being referred to herein collectively as [the][an] *Assignetl Interesf,).
Each such sale and assignment is without recourse to [the][any] Assignor and, except ur .*pr"5iy
I For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a singleAssignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the
second bracketed language.
2 For bracketed language here and elsewhere in this form relating to the Assignee(s), ifthe assignment is to a single
Assignee, choose the first bracketed language. If the assignment is to multiple Assigneei, choose the second
bracketed language.
3 Select as appropriate.
a Include bracketed language if there are either multiple Assignors or multiple Assignees.
c-2
provided in this Assignment and Assumption, without representation or warranty by [the][any]
Assignor.
1. Assignor[s]
[Assignor [is] [is not] a Defaulting Lenderl
2. Assignee[s]:
[for each Assignee, indicate [Affiliate][Approved Fund] of lidentify Lender)f
J Borrower(s): PacifiCorP
Administrative Agent: JPMorgan Chase Bank, N.A., as the administrative agent under
the Credit Agreement
Credit Agreement: The $600,000,000 Amended and Restated Credit Agreement dated
as of April30, 2018 among PacifiCorp, the Lenders parties thereto,
JPMorgan Chase Bank, N.A., as Administrative Agent, and the LC
Issuing Banks parties thereto
4.
5
6. Assigned Interest[s]:
t7. Trade Date ll0
[Page break]
5 List each Assignor, as appropriate.
6 List each Assignee, as appropriate.
7 Fill in the appropriate teiminotogy for the types of facilities under the Credit Agreement that are being assigned
undei this Assignment (e.g., "Revolving Credit Commitment," etc')
8 Amount to be adjustedby the cointerparties to take into account any payments or prepayments made between the
Trade Date and the Effective Date.
e Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.
ro To be completed if the Assigno(s) and tG Assignee(s) intend that the minimum assignment amount is to be
determined as of the Trade Date.
Assignor[s]s AssigneeIs]6
Facility
AssignedT
Aggregate Amount of
"o--1tr*1r1oans
for
all Lendersa
Amoutof
Commituent/Loans
Assigned8
Percentage
Assiped of
Commiunent/
Loanse
CUSIP
Number
$$o/o
$$o/o
s $%
c-3
Effective Date:
-,
20- [TO BE INSERTED BY ADMINISTRATIVE
AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF
TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNORIS]tt
INAME OF ASSTGNOR]
Title
INAME OF ASSTGNOR]
Title:
ASSIGNEEI-SI '2
[NAME OF ASSIGNEE]
Title:
INAME OF ASSIGNEE]
Title:
It Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if
applicable).
12 Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if
applicable).
c-4
[Consented to and]13 Accepted:
JPMORGAN CHASE BANK, N.A., AS
Administrative Agent
By
Title:
By
[Consented to:]ra
INAME OF RELEVANT PARTY]
Title:
13 To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
ra To be added only if the consent of the Borrower and/or other parties (e.g. LC Issuing Bank) is required by the terms
of the Credit Agreement.
ANNEX 1
$600,000,000 Amended and Restated Credit Agreement, dated as of April 30, 2018, among
PacifiCorp, the Lenders parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent,
and the LC Issuing Banks parties thereto
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. RepresentationsandWarranties.
1.1 Assignor[sJ. [The][Each] Assignor (a) represents and wa:rants that (i) it is
the legal and beneficial owner of [the][the relevant] Assigned lnterest, (ii) [the][such]
Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it
has full power and authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the tansactions contemplated hereby and
(iv) it is [not] a Defaulting Lender; and (b) assumes no responsibility with respect to (i)
any statements, warranties or representations made in or in connection with the Credit
Agreement or any other Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates
or any other Person obligated in respect of any Loan Document, or (iv) the performance or
observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of
any of their respective obligations under any Loan Document.
1.2. Assignee[sJ. [The][Each] Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated hereby and
to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an
assignee under Section 8.07(bxiii), (v) and (vi) of the Credit Agreement (subject to such
consents, if any, as may be required under Section 8.07(bxiii) of the Credit Agreement),
(iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned
Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with
respect to decisions to acquire assets of the type represented by the Assigned Interest and
either it, or the Person exercising discretion in making its decision to acquire the Assigned
Interest, is experienced in acquiring assets ofsuch type, (v) it has received a copy ofthe
Credit Agreement, and has received or has been accorded the opportunity to receive copies
of the most recent financial statements delivered pursuant to clauses (D and (ii) of Section
5.01(h) thereof, as applicable, and such other documents and information as it deems
appropriate to make its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase [the][such]
Assigned Interest, and (vii) attached to the Assignment and Assumption is any
documentation required to be delivered by it pursuant to the terms of the Credit Agreement,
duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will,
independently and without reliance on the Administrative Agent, [the][any] Assignor or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, and (ii) it wiil perform in accordance with their terms
all of the obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.
2. Paymenfs. From and after the Effective Date, the Administrative Agent shall make all
payments in respect of [the][each] Assigned lnterest (including payments of principal, interest,
fees and other amounts) to [the][fte relevant] Assignee whether such amounts have accrued prior
to, on or after the Effective Date. The Assignor[s] and the Assignee[s] shall make all appropriate
adjustments in payments by the Administrative Agent for periods prior to the Effective Date or
with respect to ihe making of this assignment directly between themselves. Notwithstanding the
foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts
paid or payable in kind from and after the Effective Date to [the][the relevant] Assignee.
3, General Provisions. This Assignment and Assumption shall be binding upon, and inure
to the benefit of, the parties hereto and their respective successors and assigns. This Assignment
and Assumption may be executed in any number of counterparts, which together shall constitute
one instrument. Delivery of an executed counterpart of a signature page of this Assignment and
Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this
Assignment and Assumption. This Assignment and Assumption shall be governed by, and
consffued in accordance with, the law of the State ofNew York.
EXHIBIT F.l
(to the Credit Agreement)
IFoRM OFI
U.S. TAX COMPLIAI\CE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Amended and Restated Credit Agreement, dated as of
April 30, 2018 (as further amended, supplemented or otherwise modified from time to time, the
"Credit Agreemenf'), among PacifiCorp (the "Borrower"), the Lenders party thereto from time to
time, JPMorgan Chase Bank, N.A., as Administrative Agent and the LC Issuing Banks party
thereto from time to time.
Pursuant to the provisions of Section 2.18 ofthe Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any promissory
note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a
bank within the meaning of Section 881(c)(3)(A) of the lnternal Revenue Code, (iii) it is not a ten
percent shareholder of the Borrower within the meaning of Section 871(h)(3XB) of the lnternal
Revenue Code and (iv) it is not a controlled foreign corporation related to the Borrower as
described in Section 881(c)(3)(C) of the Intemal Revenue Code.
The undersigned has furnished the Administrative Agent and the Borrower with a
certificate of its non-U.S. Person status on IRS Form W-8BEN-E or IRS Form W-8BEN. By
executing this certificate, the undersigned agrees that (1) if the information provided on this
certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative
Agent, and (2) the undersigned shall have at all times furnished the Borrower and the
Administrative Agent with a properly completed and currently effective certificate in either the
calendar year in which each payment is to be made to the undersigned, or in either of the tnro
calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
INAME OF LENDERI
By:
Name:
Title:
Date:_,201 l
EXHIBIT F.2
(to the Credit Agreement)
tFoRM OFI
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax
Purposes)
Reference is hereby made to the Amended and Restated Credit Agreement, dated as of
April 30, 2018 (as further amended, supplemented or otherwise modified from time to time, the
"Credit Agreemenf'), among PacifiCorp (the "Borrowef'),the Lenders party thereto from time to
time, JPMorgan Chase Bank, N.A., as Administrative Agent and the LC Issuing Banks party
thereto from time to time.
Pursuant to the provisions of Section 2. 1 8 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it
is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the
Internal Revenue Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning
of Section 871(hX3)(B) of the Internal Revenue Code, and (iv) it is not a controlled foreign
corporation related to the Borrower as described in Section 881(cX3XC) of the Intemal Revenue
Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S.
Person status on IRS Form W-8BEN-E or IRS Form W-8BEN. By executing this certificate, the
undersigned agrees that (1) if the information provided on this certificate changes, the undersigned
shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times
fumished such Lender with a properly completed and currently effective certificate in either the
calendar year in which each payment is to be made to the undersigned, or in either of the two
calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
INAME OF PARTICIPANT]
By:
Name:
Title:
Date: _ _, 20[ ]
EXHIBIT F-3
(to the Credit Agreement)
IFoRM Orl
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Amended and Restated Credit Agreement, dated as of
April 30, 2018 (as further amended, supplemented or otherwise modified from time to time, the
"Credit Agreemenf'), among PacifiCorp (the "Borroweru),the Lenders party thereto from time to
time, JPMorgan Chase Bank, N.A., as Administrative Agent and the LC Issuing Banks party
thereto from time to time.
Pursuant to the provisions of Section 2. 1 8 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record owner of the participation in respect of which it is providing
this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such
participation, (iii) with respect such participation, neither the undersigned nor any of its direct or
indirect parhrers/members is a bank extending credit pursuant to a loan agreement entered into in
the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the
Internal Revenue Code, (iv) none of its direct or indirect partners/members is a ten percent
shareholder of the Borrower within the meaning of Section 871(hX3XB) of the Internal Revenue
Code and (v) none of its direct or indirect parfirers/members is a controlled foreign corporation
related to the Borrower as described in Section 881(cX3)(C) of the Internal Revenue Code.
The undersigned has fumished its participating Lender with IRS Form W-8IMY
accompanied by one of the following forms from each of its partners/members that is claiming the
portfolio interest exemption: (i) an IRS Form W-8BEN-E or IRS Form W-8BEN or (ii) an IRS
Form W-8IMY accompanied by an IRS Form W-8BEN-E or IRS Form W-8BEN from each of
such partner's/member's beneficial owners that is claiming the portfolio interest exemption. By
executing this certificate, the undersigned agrees that (l) if the information provided on this
certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned
shall have at all times furnished such Lender with a properly completed and currently effective
certificate in either the calendar year in which each payment is to be made to the undersigned, or
in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
INAME OF PARTICIPANT]
By:
Name:
Title:
Date:_ _,201 I
EXHIBIT F.4
(to the Credit Agreement)
IFoRM OFI
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Amended and Restated Credit Agteement, dated as of
April 30, 2018 (as further amended, supplemented or otherwise modified from time to time, the
"bredit Agreemenf'),among PacifiCorp (the "Borroweru),the Lenders party thereto from time to
time, JPMorgan Chase Bank, N.A., as Administrative Agent and the LC Issuing Banks party
thereto from time to time.
Pursuant to the provisions of Section 2. 1 8 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record owner of the Loan(s) (as well as any promissory note(s)
evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect
partners/members are the sole beneficial owners of such Loan(s) (as well as anypromissorynote(s)
ividencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit
Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect
partners/members is a bank extending credit pursuant to a loan agreernent entered into in the-ordinary
course of its trade or business within the meaning of Section 881(c)(3)(A) of the [nternal
Revenue Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of
the Borrower within the meaning of Section 871(hX3XB) of the Internal Revenue Code and (v)
none of its direct or indirect parfirers/members is a controlled foreign corporation related to the
Borrower as described in Section 8Sl(c)(3)(C) of the Internal Revenue Code.
The undersigned has fumished the Administrative Agent and the Borrower with IRS Form
W-8IMY accompanied by one of the following forms from each of its parfrrers/members that is
claiming the portfolio interest exemption: (i) an IRS Form W-8BEN-E or IRS Form W-8BEN or
(ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN-E or IRS Form W-8BEN from
each of such partner's/member's beneficial owners that is claiming the portfolio interest
exemption. By executing this certificate, the undersigned agrees that (l) if the information
provided on this certificate changes, the undersigned shall promptly so inform the Borrower and
the Administrative Agent, and (2) the undersigned shall have at all times fumished the Borrower
and the Administrative Agent with a properly completed and currently effective certificate in either
the calendar year in which each payment is to be made to the undersigped, or in either of the two
calendar years preceding such payments.
Unless othenrise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
INAME OF LENDER]
Name:
Title:
Date _,201 )
SCHEDULE I
LIST OF COMMITMENT AMOUNTS AND APPLICABLE LENDING OFFICES
PACIFICORP
U.S. $600,000,000 Amended and Restated Credit Agreement
Name of Bank Commitment
Amount
Domestic
Lendine Ofiice
Eurodollar
Lendine
Office
JPMorgan Chase
Bank, N.A.
$35,689,868.83 500 Stanton Christiana Road, Ops 2 Floor 3
Newark, Delaware 197 13-2107
Contact: Juan Javellana
Phone: (212)2704272
Email: iuan j j avellana@jpmorean.com
Group Email : na cDg@ipmorsan.com
Same as
Domestic
Lending
Office
Wells Fargo Bank,
National
Association
$35,689,868.83 90 S. 76 Street
MAC: N9305-06G
Minneapolis, MN 55402
Contact: Greg Gredvig
Phone: (612)6674832
Fax : (612) 316-0506
Email: greeorv.r. sredvie@wellsfarso.com
Group Email:
RKEL
Same as
Domestic
Lending
Offrce
Mizuho Bank,
Ltd.
$35,689,868.83 1251 Avenue of the Americas
New York, New York 10020
Contact: Edwin Stone
Phone: (212)282-3269
Fax: (212) 282-4488
Email: edwin.stone@mizuhocbus.com
Group Email:
LAU USCom3@mizuhocbus.com
Same as
Domestic
Lending
Oflice
MUFGUnion
Bank, N.A.
$35,689,868.83 445 South Figueroa Street, 15th Floor
Los Angeles, California 90071
Contact: Jeffrey Flagg
Phone: (213)236-6911
Email : jflagg@us.mufg jp
Group Email: #ClosYND@unionbank.com
Same as
Domestic
Lending
Offrce
t-2
Name of Bank Commitment
Amount
Domestic
Lendine Office
Eurodollar
Lendine
Offrce
Citibank, N.A.$35,689,868.83 399 Park Avenue, 1 6ft Floor 5
NewYork, NewYork 10043
Contact: Loan Administration
Phone: (302)894-6052
Fax: (212) 994-0847
Email: GlOriginationOps@citi.com
Same as
Domestic
Lending
Office
U.S. Bank
National
Association
$35,689,869.93 800 Nicollet Mall
Minneapolis, Minnesota 55402
Contact: Holland H. Williams
Phone: (208) 383-7565
Fax: (208) 383-7489
Email:
hollandhuffman.williams@usbank.com
Same as
Domestic
Lending
Office
Barclays Bank
PLC
$35,689,868.93 745 Seventh Avenue, 24t'FL
NewYork,NewYork 10019
Contact: Charlie Goetz
Phone: (212)5264454
Email : charlie. soetz@barclays.com
Group Email:
xraUSloanOps4@Barclavs.com
Same as
Domestic
Lending
Office
BNP Paribas $24,751,155.79 787 Seventh Avenue
NewYork,NewYork 10019
Contact: Denis O'Meara
Phone: (212)471-8108
Fax: (212) 841-2745
Email:
denis.omeara@americas.bnpparibas. com
Same as
Domestic
Lending
Office
Royal Bank of
Canada
$24,751,155.79 Three World Financial Center
NewYork,NewYork 10281
Contact: Rahul Shah
Phone: (212) 858-6053
Fax: (212) 428-6201
Email: rahul.shah@rbccm.com
Same as
Domestic
Lending
Office
r-3
Name of Bank Commitment
Amount
Domestic
Lendine Office
Eurodollar
Lendine
Office
The Bank of Nova
Scotia
$24,751,155.79 720 King Street W-2nd floor, Toronto,
Ontario, Canada M5V 2T3
Primar.v Contact: Priyanka Rao
Secondary Contact: Jamie Breese
Phone: (212)225-5705
Fax: (212) 225-5709
Email:
GWSUSCom LoanOps@scotiabank.com
Same as
Domestic
Lending
Offrce
Bank of Montreal,
Chicago Branch
$20,996,766.99 115 S. LaSalle St., I7ft Floor West
Chicago, IL 60603
Contact: Carol McDonald
Phone: (403) 515-3663
Fax: (403) 515-3650
Email:
Same as
Domestic
Lending
OfIice
Sumitomo Mitsui
Banking Corp.
$20,996,766.99 277 ParkAvenue
NewYork,NewYork 10172
Contacfi Emily Estevez
Phone: (212) 2244177
Fax: (212) 224-4384
Email : eestevez@smbclf. com
Same as
Domestic
Lending
OfIice
Canadian Imperial
Bank of
Commerce, New
York Branch
$20,996,766.99 595 Bay Street,5ft Floor
Toronto, ON M5G 2C2
Contact Angela Tom
Phone: (416) 5424446
Fax: (905) 948-1934
Same as
Domestic
Lending
Office
CoBank, ACB $20,996,766.99 6340 S. Fiddlers Green Circle
Greenwood Village, CO 80111
Contact: Credit lnformation Services
Fax: (303) 224-6101
Email: ClServices(Dcobaak.csrq
Same as
Domestic
Lending
Office
t-4
Name of Bank Commitment
Amount
Domestic
Lendine Office
Eurodollar
Lendine
Offrce
KeyBank National
Association
s20,996,766.99 4900 Tiedeman Road
Brookllm, OH44144
Contact: KAS Servicing
Phone: (216)813-5647
Fax : (216) 370-5997 (Note: All notices must
be faxed)
Email: kas_servicing@keybank.com
Group Email: kas servicing@keybank.com
Same as
Domestic
Lending
Office
PNC Bank,
National
Association
$20,996,766.99 249 Fifth Avenue
One PNC Plaza
Pittsburgh, Pennsylvani a I 5222
Contact: Janet Gordon
Phone: (440) 546-6564
Fax: (877) 717-5502
Email: ianet.sordon@pnc.com
Group Email:
ParticipationCloserRequests@pnc. com
Same as
Domestic
Lending
Office
SunTrust Bank $20,996,767.00 2l I Perimeter Center Parkway
Atlanta, GA 30346
Contact: Meta Tshimanga
Phone: (770)352-5231
Fax: (844) 288-3379
Email: Meta.Tshimanga@suntrust.com
Same as
Domestic
Lending
Office
TD BankN.A.$20,996,766.99 2005 Market Street
Philadelphia, Pennsylvania I 9103
Contact: Vijay Prasad
Phone: (646) 652-1427
Email : Vij ay.prasad2@td.com
Group Email:
investor.processing@yesbank.com
Same as
Domestic
Lending
Office
The Bank of New
York Mellon
s20,996,766.99 6023 Airport Road
Oriskany, NY 13424
Contact: Brian K. Brown
Phone: (315) 801-2433
Fax: (315) 7654822
Email: brian.brown@bnvmelloa.com
Same as
Domestic
Lending
Ofiice
I-5
Name of Bank Commitment
Amount
Domestic
Lendins Office
Eurodollar
Lendine
Offrce
Banco Santander,
S.A.,NewYork
Branch
$20,996,766.99 45 East 53rd Street
NewYork,NY 10022
Same as
Domestic
Lending
Offrce
National Australia
Bank Limited
s20,996,766.99 245ParkAve.28th Floor
NewYork,NY 10167
Contact: Eli Davis / Helen Hsu
Phone: (212) 916-9550 I (212) 916-9619
Email: eli.davis@nabny.com /
helen.hsu@nabny.com
Same as
Domestic
Lending
Offrce
National
Cooperative
Services
Corporation
$25,000,000.00 20701 Cooperative Way
Dulles, Virginia 20166
Contact: Jamie Rodrigues
Phone: (703)467-2740
Fax: (703) 467-5653
Email: Jamie.Rodrizuez@nrucfc.coop
Same as
Domestic
Lending
Office
TheNorthern
Trust Company
$19,953,013.92 50 S. LaSalle Street
Chicago, Illinois 60603
Contact: Murtuza Ziauddin
Phone: (312) 557-3075
Fax: (312) 557-1425
Email: mz14(@ntrs.com
Same as
Domestic
Lending
OfIice
TOIAL $600,000,000
SCHEDULE II
LIST OF FRONTING COMMITMENTS
PACIFICORP
U.S. $600,000,000 Amended and Restated Credit Agreement
LC Issuine
Bank
LC Issuins BankAddress Fronting Commitment
Wells Fargo
Bank, National
Association
90 S. 7fr Street
MAC: N9305-06c
Minneapolis, MN 55402
Contact: Greg Gredvig
Phone: (612) 667-4832
Fax: (612) 316-0506
Email:
ere gory.r. predvi g@wellsfareo.com
Group Email:
RKElClNSVPavments@wellsfareo. com
$125,000,000
BNP Paribas 787 Seventh Avenue
NewYork, NewYork 10019
Contact: Denis O'Meara
Phone: (212) 471-8108
Fax: (212) 841-2745
Email:
denis.omeara@americas.bnpoaribas.com
$50,000,000
SCIIEDULE III
LIST OF MATERIAL SI]BSIDIARIES
PACIFICORP
U. S. $600,000,000 Amended and Restated Credit Agreement
None.
SCHEDULE IV
EXISTING LETTERS OF CREDIT
None.